Sommerville Construction

National Labor Relations Board - Board Decisions

Jan 29, 1999

327 N.L.R.B. 514 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514
Sommerville Construction Co. and International Un-
ion of Bricklayers & Allied Craftsmen Local No.
4 of Indiana and Kentucky, Merrillville Chap-
ter, affiliated with International Union of Brick-
layers & Allied Craftsmen, AFL–CIO. Case 25–
CA–25276
January 29, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On November 20, 1998, Administrative Law Judge
James L. Rose issued the attached decision. The General
Counsel filed limited exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions,1 to
modify the remedy,2 and to adopt the recommended Or-
der as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Som-
merville Construction Co., Indianapolis, Indiana, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Make whole, with interest, the unit employees by
paying the pension and other benefit funds contributions
mandated by the relevant collective-bargaining agree-
ments that the Respondent failed to make, and by remit-
ting to the Union dues and other payments that employ-
ees, through signed dues checkoffs, had authorized the
Respondent to deduct from their wages, together with
interest, as provided for in this decision.”

1 The Respondent has not filed any exceptions to the judge’s deci-
sion.
2 The General Counsel, in his limited exceptions, has requested that
the Board modify the judge’s remedy to order that the Respondent
remit to the Union dues and other payments that the Respondent should
have deducted from the wages of employees who signed valid dues-
checkoff authorizations, and that the Respondent mail the Notice to
Employees to all employees that it employed at any time since October
31, 1995.
Regarding the dues-checkoff payments, it is well established that the
Board requires an employer to reimburse the union for such payments
that it failed to make under the collective-bargaining agreement, where
employees have signed valid authorizations for the employer to deduct
union dues from their wages. W. J. Holloway & Son, 307 NLRB 487,
fn. 3 (1992). Accordingly, we shall modify the remedy to require that
the Respondent make these payments.
Regarding the mailing of the notices, we agree with the General
Counsel that there has been a significant amount of employee turnover
in the Respondent’s work force since the Respondent repudiated its
collective-bargaining agreement with the Union. Although the General
Counsel requests that the Board direct the Respondent to mail the no-
tice to all employees that the Respondent employed at any time since
executing its collective-bargaining agreement with the Union on Octo-
ber 31, 1995, the evidence shows that the Respondent did not repudiate
that agreement until about 3 or 4 months later. In these circumstances,
we shall order the Respondent to mail the notice to all employees that it
employed at any time since February 1, 1996, the approximate date that
the repudiation occurred.
2. Insert the following as paragraph 2(f) and reletter
the subsequent paragraph accordingly.
“(f) Mail a copy of the attached notice to all employ-
ees that the Respondent employed at any time since Feb-
ruary 1, 1996, which was the approximate date that the
Respondent repudiated its collective-bargaining agree-
ment with the Union. The notice shall be mailed to the
last known address of each employee. Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 25, after being signed by the Respondent’s author-
ized representative, shall be mailed immediately on re-
ceipt by the Respondent, as directed above.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT untimely repudiate the terms and
conditions of our collective-bargaining agreement with
International Union of Bricklayers & Allied Craftsmen
Local No. 4 of Indiana and Kentucky, Merrillville Chap-
ter, affiliated with International Union of Bricklayers &
Allied Craftsmen, AFL–CIO, and WE WILL NOT fail
and refuse to recognize and abide by the terms of that
agreement.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to adhere to the terms of
the collective-bargaining agreement, including but not
limited to making contractually required payments to
pension and other benefit funds that are mandatory sub-
jects of bargaining and making dues-checkoff payments
on behalf of employees who have authorized us to deduct
them from their wages.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole, with interest, all employees in
the bargaining unit for any losses they may have suffered
as a result of our unlawful failure and refusal to adhere to
the terms of the collective-bargaining agreement.
WE WILL make whole, with interest, the unit employ-
ees by paying the pension and other benefit funds contri-
butions mandated by the relevant collective-bargaining
agreements that the Respondent failed to make, and by
remitting to the Union dues and other payments that em-
327 NLRB No. 99
SOMMERVILLE CONSTRUCTION CO. 515
ployees, through signed dues checkoffs, had authorized
the Respondent to deduct from their wages, together with
interest.

SOMMERVILLE CONSTRUCTION
COMPANY

Joseph P. Sbuttoni, Esq., for the General Counsel..
Robert S. Rifkin, Esq., of Indianapolis, Indiana,
for the Respondent.
Paul T. Berkowitz, Esq., of Chicago, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me on September 10, 1998, at Indianapolis,
Indiana, on the General Counsel’s complaint which alleged
that the Respondent repudiated its collective-bargaining agree-
ment with the Charging Party in violation of Section 8(a)(5) of
the National Labor Relations Act (the Act).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends the contract which
it entered into with the Charging Party was meant to be appli-
cable only to two specific projects.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a proprietorship owned and operated by
Homer Sommerville and engaged in the construction industry
as a masonry contractor throughout the State of Indiana and
adjoining States. The Respondent annually performs services in
excess of $50,000 in States other than Indiana. The Respondent
admits and I conclude that he is an employer engaged in inter-
state commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Bricklayers & Allied Craftsmen Local
No. 4 of Indiana and Kentucky, Merrillville Chapter, a/w Inter-
national Union of Bricklayers & Allied Craftsmen, AFL–CIO is
admitted to be, and I find is, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Indiana Bricklayers Local No. 4, Indiana/Kentucky (as the
Union is styled in its collective-bargaining agreement with the
Indiana Mason Contractors Statewide Association, Inc.) has
geographical jurisdiction in Indiana and 24 counties in Ken-
tucky. Some years ago several Bricklayers locals combined to
form Local No. 4. The Union now has 10 chapters, each of
which has a defined geographical jurisdiction. The one in-
volved in this matter is the Merrillville Chapter headed by Field
Representative Dale Johnsen, with offices at Anderson, Indi-
ana.
The Union has had successive collective-bargaining agree-
ments with the Indiana Mason Contractors Statewide Associa-
tion, Inc. (the Association). The one here involved was signed
on August 17, 1995,1 to be effective until May 31, 1998. These
parties have negotiated and executed a successor agreement.
The Respondent has been in business 30 plus years during
which period he has operated as a nonunion employer, although
Sommerville testified that on some jobs he was required to pay
union wages and did so.
Sometime in mid-1995, Sommerville was solicited by repre-
sentatives of Trademark Construction Company to bid on two
projects—one at Portage, Indiana, and the other at Michigan
City, Indiana. Sommerville received the bids and began work-
ing on the Portage project in the late summer. After Sommer-
ville was on the project about 30 to 45 days, Johnsen and an-
other field representative of the Union visited the jobsite and
ultimately concluded that masonry work was being done by
nonmembers of the Union. They (along with a representative of
the laborers union) requested a meeting with officials of
Trademark and Sommerville.
This meeting took place on October 31. In essence, the Un-
ion’s representatives wanted Sommerville to sign the agreement
they had with the Association. Sommerville protested that the
wage rate was too high, however Steven Warne, the project
manager for Trademark, offered to make up the difference,
though he testified he was “put out” by the prospect. Johnsen
told Warne that the Union could offer Market Recovery Pro-
gram for the specific projects. Though not detailed in the re-
cord, it appears that this program would allow the Respondent
to have more apprentices than contractually allowed. These are
individuals who have experience in the industry and are styled
“Improvers.” In effect, “Improvers” are at the level of journey-
men, but do not receive the journeyman rate nor are all the
fringe benefit payments made for them.
Sommerville maintains that he did not sign the contract at
this time. His testimony was supported by Warne and Steve
Flick, the construction superintendent. However, Sommerville
did agree that he signed the Memorandum of Agreement,2 as
well as the Assent of Participation (in the fringe benefits funds
and apprenticeship training program) which Johnsen also
signed. The memorandum is a form on which there is added by
typewriter, “Sommerville Construction Company,” “October
31, 1995,” “31st,” “October,” “5,” and “Merrillville Chapter.”
The assent is also a form, on which was typed “31st”2 and “Oc-
tober 1995.”
Sommerville, Warne, and Flick all testified that the union
representatives had no documents with them on October 31 and
that Sommerville did not sign the contract then. Johnsen and
his assistant, Jerry Brown, testified that they came to the meet-
ing with their standard packet of materials—two copies each of
the memorandum and the assent, a surety bond and a copy of
the bound contract between the Union and the Association.
They testified that Sommerville signed both sets of documents
and that on November 1 Johnsen sent Sommerville one copy
each of the memorandum and assent along Market Recovery
Program agreements for Portage and Michigan City.

1 All dates hereafter are in 1995, unless otherwise indicated.
2 Counsel for the Respondent apparently argues that the memoran-
dum was not a complete document since appearing at the bottom of the
page is “21” indicating 20 preceding pages. Johnsen credibly explained
that the association contract was originally in long-page form, of which
the memorandum was the 21st page. The association contract now, and
in evidence, is in booklet form.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
He wrote: “Here is what we agreed upon, please sign both
sets of paper. We need this back as soon as possible to finalize
the agreement. If you have any questions, please contact the
Merrillville Chapter Union Hall.” According to Johnsen, he
enclosed the Market Recovery Program agreements for Portage
and Michigan City, each of which was two pages. According
to Sommerville, enclosed was only the first page of each Mar-
ket Recovery Program agreement as well as the Assent of Par-
ticipation and the Memorandum of Agreement. Johnsen testi-
fied that Sommerville did not respond to his letter. Sommerville
testified that sometime later he signed the memorandum and
assent and sent them back to Johnsen.
Since the Assent of Participation and the Memorandum of
Agreement as well as the two Market Recovery Program
agreements include typed portions (in the same font as that
used in Johnsen’s letter), it appears more likely than not that all
these documents were prepared in Johnsen’s office and sent to
Sommerville. Since Sommerville in fact signed the assent and
memorandum, and is uncredibly vague about whether he in fact
returned anything to Johnsen, I credit Johnsen that Sommerville
signed the agreements on October 31. I conclude that the packet
sent to Sommerville included not only the two Market Recov-
ery Program agreements for him to sign, but also included cop-
ies of the memorandum and assent which he had already
signed.
That the union representatives would have, and present to
Sommerville, the packet of materials is reasonable and consis-
tent with their aim of signing Sommerville as a participating
contractor. The version of Johnsen and Brown is simply more
credible and plausable than that of Sommerville, Warne, and
Flick. Further, I credit Brown’s testimony that it was not their
practice to include a Market Recovery Program agreement in
their standard packet. Indeed, they had never before offered
one.
However, exactly when Sommerville signed the agreements
makes little difference. Counsel for the Respondent has not
suggested why it would matter whether Sommerville signed the
memorandum and assent on October 31 or sometime later.
Sommerville, in fact, signed them and on the following Mon-
day replaced his current employees and began contributing to
the fringe benefit funds pursuant to the contract and the Market
Recovery Program. Four of the five journeymen on the payroll
signed applications for membership and dues-checkoff authori-
zations.
Since leaving the Portage project, Sommerville has not
complied with the terms of the Union’s contract with the Asso-
ciation, or the successor which became effective May 31,
1998.3
B. Analysis and Concluding Findings
On these facts the General Counsel argues that the Respon-
dent repudiated a collective-bargaining agreement in violation
of Section 8(a)(5) of the Act. The Respondent argues that the

3 At the outset of the hearing counsel for the General Counsel moved
to amend the complaint to allege that the Respondent’s repudiation of
the contract includes this successor agreement. Counsel for the Re-
spondent objected to the amendment, but agreed to go forward with the
hearing, since all witnesses were present, and to treat the Respondent’s
liability under the successor as a compliance matter, should the Re-
spondent be found liable. Counsel for the General Counsel and the
Charging Party agreed to this procedure and I granted the amendment.
agreement he signed was “site specific” limited to the two pro-
jects of Portage and Michigan City.
While the Market Recovery Program agreements give some
plausibility to Sommerville’s argument, the fact remains that he
signed the memorandum and that document is clear and unam-
biguous:

1. The EMPLOYER recognizes the UNION as the sole
and exclusive collective bargaining representative for and
on behalf of the employees of the EMPLOYER now or
hereinafter employed within the territorial or occupational
jurisdictions of the UNION.
2. The parties do hereby adopt the latest Agreement,
and all approved amendments thereto, between the Union
and the Indiana Statewide Association, and agree to be
bound by all of the terms and conditions thereof for the
duration of such Agreement and for the period of any sub-
sequent extensions including any amendments which may
be subsequently made and any subsequent Agreements.
3. The parties agree to be bound by the terms and con-
ditions of any Trust Fund Agreements identified in the
aforesaid Agreement and amendments thereof, accepting
and ratifying the appointment of the employer Trustees
and their successors for the aforesaid period.

Article II of the agreement between the Association and Lo-
cal No. 4 states that it “shall be in effect within the boundaries
of the State of Indiana” and certain counties of Kentucky and:

A. This AGREEMENT covers all construction work
within the jurisdiction of the International Un-
ion, as defined in the Constitution of the Interna-
tional Union, as well as all other work normally
and traditionally assigned to and performed by
employees represented by the InternationalUn-
ion of Bricklayers and Allied Craftsmen. He
bound himself to the terms of the Association
contract.

There is no language in either the memorandum or the asso-
ciation contract which would suggest that the Respondent’s
obligations be limited only to his work at Portage and Michigan
City. The clear language of these agreements “belie any sug-
gestion that the parties intended only a single-project agree-
ment.” Cowboy Scaffolding 326 NLRB 1050–1051 (1998).
I conclude that Johnsen offered the Market Recover Program
for these two projects but he did not thereby alter the specific
terms of the memorandum and the association contract. John-
sen did not agree that the Sommerville’s acceptance of the
association contract would be limited to these two sites. But
even if Sommerville could be credited, an oral understanding in
variance of a written contract cannot be given controlling ef-
fect. As the Board said in W. J. Holloway & Son, 307 NLRB
487 fn. 1 (1992):

We find, in agreement with the judge, that the Respondent’s
written, executed 1987 agreement with the Union is control-
ling, and that any contrary oral understanding between them,
i.e., that the contract would apply only to the current job,
could not be given effect because it would not merely explain
or clarify but rather invalidate and nullify the parties’ written
agreement. [Citations omitted.]

SOMMERVILLE CONSTRUCTION CO. 517
The Respondent’s basic contention is there was no meeting of
the minds, and therefore no enforceable contract. I reject this
argument, under the above authority and I further note that
within days of the October 31 meeting, Sommerville began
complying with the terms of the agreement. I therefore con-
clude that Sommerville was bound by an enforceable contract
and that his failure to abide by its terms violated Section 8(a)(5)
of the Act. The Respondent should be ordered to comply with
the terms of the association agreement and make whole all
employees, and the fringe benefit trusts, for any losses suffered
as a result of his repudiation of it.
REMEDY
Having concluded that the Respondent breached his obliga-
tions under his agreement with the Union, I shall recommend
that he be ordered to make whole all employees who have not
received the contractually required wages in the manner pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), and reimburse them for any
expenses they may have incurred because of his failure to make
the required contributions to the fringe benefit funds, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.2 (1980),
enfd. Mem. 661 F.2d 940 (9th Cir. 1981), and the fringe bene-
fits funds, in accordance with Merryweather Optical Co., 240
NLRB 1213 (1979), all amounts owing to be paid with interest
as provided in New Horizons for the Retarded, 283 NLRB 1173
(1987). Whether and to what extent this make-whole remedy is
applicable to the association contract effective May 31, 1998,
will be determined in the compliance phase of this matter.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Sommerville Construction Company, Indi-
anapolis, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Untimely repudiating the terms and conditions of its col-
lective-bargaining agreement with International Union of
Bricklayers & Allied Craftsmen Local No. 4 of Indiana and
Kentucky, Merrillville Chapter, a/w International Union of
Bricklayers & Allied Craftsmen, AFL–CIO, and failing and
refusing to recognize and abide by the terms of that agreement.
(b) Refusing to bargain collectively with the Union by failing
and refusing to adhere to the terms of the collective-bargaining
agreement, including, but not limited to, making contractually
required payments to pension and other benefit funds that are
mandatory subjects of bargaining.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain with the Union as the
exclusive collective-bargaining representative of his employees
in the following appropriate unit:
All work performed by employees of the Respondent within
the jurisdiction of the International Union, as defined in the
Constitution of the International Union of Bricklayers & Al-
lied Craftsmen, AFL–CIO.

(b) Make all employees in the bargaining unit whole, with
interest, for any losses they may have suffered as a result of the
Respondent’s unlawful failure and refusal to adhere to the
terms of the collective-bargaining agreement in the manner set
forth in the remedy section .
(c) Make the pension and other benefit funds that are manda-
tory subjects of bargaining whole for the losses they have suf-
fered as a result of the Respondent’s unlawful failure and re-
fusal to make the contractually required payment to those
funds.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by Region 25, post at its cur-
rent jobsites within the geographic area encompassed by the
appropriate unit and at its place of business in Indianapolis,
Indiana, copies of the attached notice marked “Appendix.”5
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 25 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 31, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director in a sworn certification of a responsible offi-
cial on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”