W. J. Holloway & Son

National Labor Relations Board - Board Decisions

May 11, 1992

307 N.L.R.B. 487 (N.L.R.B. 1992)

487
307 NLRB No. 83
W. J. HOLLOWAY & SON
1 We find, in agreement with the judge, that the Respondent’s writ-
ten, executed 1987 agreement with the Union is controlling, 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 be-
cause it would not merely explain or clarify but rather invalidate and
nullify the parties’ written agreement. Beech & Rich, Inc., 300
NLRB 882 (1990).
2 In agreeing with the judge’s conclusion that the threat to picket
was not unlawful, Members Oviatt and Raudabaugh rely solely on
the fact that no charge was filed with respect to that threat. Chair-
man Stephens agrees with the judge’s conclusion and his reliance on
the Board’s decision in Laborers Local 1184 (NVE Constructors),
296 NLRB 1325 (1989).
3 The judge’s recommended make-whole order, pursuant to his
remedy, requires, inter alia, that the Respondent remit ‘‘to Local
Unions 275 and 1305 the dues and fees it should have deducted
from its employees’ wages pursuant to the terms of the contract.’’
The Board, however, does not order that a union be reimbursed for
dues unless employees have individually signed dues-checkoff au-
thorizations. California Blowpipe & Steel Co., 218 NLRB 736, 754
(1975), enfd. 543 F.2d 416 (D.C. Cir. 1976). See also Rockwell
Printing & Publishing Co., 231 NLRB 1215 at fn. 3 (1977). Accord-
ingly, we have modified par. 2(a) of the judge’s recommended Order
to limit the dues reimbursement requirement to situations in which
employees signed dues-checkoff authorizations. We have also modi-
fied his remedy to accord with this limitation and to further provide
that if no checkoff authorizations were executed, no reimbursement
of dues shall be required.
We shall also modify the judge’s recommended Order to require
the Respondent to make employees whole by reimbursing them for
any expenses resulting from the Respondent’s failure to make re-
quired benefit fund payments. See Kraft Plumbing & Heating, 252
NLRB 891 (1980). Interest on such amounts shall be paid in the
manner prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
W. J. Holloway & Son and Local Unions 275 and
1305, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO. Cases 1–CA–
27032, 1–CA–27554, and 1–CA–27618
May 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 11, 1991, Administrative Law Judge Ste-
phen J. Gross issued the attached decision. Counsel for
the Respondent filed exceptions, and counsel for the
General Counsel resubmitted its brief to the adminis-
trative law judge in support of the judge’s decision.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, W. J.
Holloway & Son, Boston, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following as paragraph 2(a).
‘‘(a) Make employees whole by making the benefit
fund and other payments mandated by the 1989–1993
collective-bargaining contract that the Respondent
failed to make, and by remitting to Local Unions 275
and 1305 the dues and checkoffs that employees
through signed checkoffs authorized it to deduct from
their wages, together with interest thereon, as provided
in the remedy section of this decision.’’
2. Add the following as paragraph 2(b) of the Order
and reletter the subsequent paragraphs.
‘‘(b) Make whole unit employees by reimbursing
them for any expenses resulting from the Respondent’s
failure to make required benefit fund payments, with
interest.’’
3. Substitute the attached notice for that of the ad-
ministrative 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to adhere to the 1989–
1993 collective-bargaining contract between the East-
ern Massachusetts Carpenters, on the one hand, and,
on the other, the Associated General Contractors of
Massachusetts and various other associations of em-
ployers located in Massachusetts, and unless we make
a proper and timely withdrawal, we will adhere to suc-
cessor agreements.
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 employees whole by making the
benefit fund and other payments mandated by the
1989–1993 collective-bargaining contract, together
with interest thereon.
WE WILL make employees whole by reimbursing
them for any expenses resulting from our failure to
make required benefit fund payments, plus interest.
W. J. HOLLOWAY & SON
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I will refer to those local unions collectively as ‘‘the Car-
penters.’’ For a listing of all the local unions involved, see fn. 4.
2 The Respondent admits that it is an employer engaged in com-
merce for the purposes of the Act and that Locals 275 and 1305 are
labor organizations within the meaning of the Act.
3 As the record herein shows, the Carpenters’ collective-bargaining
agreements typically provide that, ‘‘except for filed sub-bids, the
employer agrees that he will not subcontract any work covered by
this Agreement which is to be performed on the jobsite except to
contractors who are parties to a collective-bargaining agreement with
the Union.’’ (‘‘Filed sub-bids’’ are when a contractor subcontracts
bids directly to the awarding authority; you know, the prison author-
ity or any state agency, not through the general contractor.’’ Witness
Benjamin at Tr. 15.)
Kathleen McCarthy, Esq., for the General Counsel.
James W. Savage, Esq., of Newton, Massachusetts, for the
Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. A group of
Carpenters local unions located in Massachusetts, including
the Charging Parties, Locals 275 and 1305, are parties to col-
lective-bargaining agreements with a group of associations of
employers located in Massachusetts.1 The Respondent, W. J.
Holloway & Son, is a carpentry contractor engaged in the
building and construction industry in Massachusetts.2
In February 1987 the Respondent signed an agreement by
which, on the face of the agreement, the Respondent agreed
to the terms of the collective-bargaining contracts then in
force between the Carpenters and the employers’ associations
and to any successor contracts. The General Counsel con-
tends that on several occasions the Respondent refused to
abid by such collective-bargaining contracts and that, by
those refusals, the Respondent violated Section 8(a)(1) and
(5) and Section 8(d) of the National Labor Relations Act (the
Act).
For the reasons discussed below, my conclusion is that the
Respondent did violate Section 8(a)(1) and (5) of the Act.
A. Procedural Background
Local 275 filed its charge in Case 1–CA–27032 on Janu-
ary 31, 1990. The complaint in that proceeding issued on
March 21, 1990. During the course of the hearing on July
30, 1990, the parties entered into a settlement agreement,
with the Respondent agreeing to post a specified notice and
to take certain other affirmative actions. I approved the
agreement. Then on November 6, 1990, the General Counsel
moved to set aside the settlement ageement and to consoli-
date Case 1–CA–27032 with Cases 1–CA–27554 and 1–CA–
27618. The Respondent did not file a response, and I granted
the General Counsel’s motion by order dated November 19,
1990.
Case 1–CA–27554 began with a charge filed by Local 275
on August 15, 1990. The complaint in that proceeding issued
on October 10, 1990. Local 1305 filed its charge, in 1–CA–
27618, on September 12, 1990. The complaint issued on Oc-
tober 18, 1990.
I held a hearing in the matter in Boston on March 6, 1991.
At the hearing I granted a motion by counsel for the General
Counsel to amend the complaint in Case 1–CA–27032.
B. The 1987 Agreement
Sometime in late 1986 or early 1987 the Respondent
began work as a subcontractor at a site in Wrentham, Massa-
chusetts. Its employees on the job were not members of any
union and the Respondent had no agreement with any union
except, perhaps, with respect to work in Boston.
The general contractor at the site was operating pursuant
to a collective-bargaining contract with the Carpenters. That
contract permitted the general contractor to subcontract work
only to employers that were parties to collective-bargaining
agreements with the Carpenters.3 After the Respondent had
completed about one-third of its contracted work at the
Wrentham site, an official of the general contractor met with
the Respondent’s president, Willie Holloway, and discussed
that contractual obligation. (I will henceforth use ‘‘Hollo-
way’’ to refer to the individual, Willie Holloway.) At least
in part because of threats by the Carpenters to picket the job-
site, the general contractor made it plain that, as far as it was
concerned, the Respondent could not continue work on the
job unless the Respondent signed up with the Carpenters.
Meanwhile an agent of Local 275, during visits to the job-
site, directly demanded of the Respondent that it enter into
a collective-bargaining relationship with the Carpenters.
The Respondent was thus presented with a situation in
which it would either have to leave the job, at considerable
financial loss, or sign with the Carpenters. The Respondent
chose the latter route when, according to Holloway’s
unrebutted testimony the Carpenters’ business agent told
Holloway that the Respondent could enter a collective-bar-
gaining relationship with the Carpenters just for that one
project in Wrentham. It was on that basis, Holloway testified,
that he signed a one-page agreement that included the fol-
lowing provisions:
Agreement made this 1 day of February, 1987 by
and between W.J. Holloway & Son Co. . . .(herein re-
ferred to as the ‘‘Employer’’) and Local Unions . . .
275 . . . 1305 . . . each affiliated with the United
Brotherhood of Carpenters and Joiners of America
(herein referred to as the ‘‘Unions’’).
Whereas the Unions have collective bargaining
agreements in the industry with [named employer asso-
ciations] (herein referred to as the ‘‘Employers’’).
Now, therefore, the parties mutually agree as fol-
lows:
1. The undersigned employer accepts the collective
bargaining agreements between the Employers and the
Unions and becomes one of the parties thereto, and
agrees to abide by all of their terms and conditions. The
collective bargaining agreements, their amendments,
and any such successive agreements which may subse-
quently be negotiated are incorporated herein with the
same force and effect as though said agreements were
set forth herein at length.
2. The life of this Agreement shall be co-extensive
with the terms set out or as they shall be set out from
time to time in the collective bargaining agreements be-
tween the Employers and the Unions and shall continue
in effect unless either party gives notice of termination
of a particular collective bargaining agreement in ac-
cordance with the applicable notice provision contained
therein. In the event neither party thereto gives timely
489W. J. HOLLOWAY & SON
4 Carpenters locals referred to in the 1987 agreement, in addition
to Locals 275 and 1305 are: 41, 48, 49, 56, 107, 108, 111, 260, 402,
424, 475, 535, 595, 624, 815, 1121, and 2168. The employer asso-
ciations to which the agreement referred include: the Associated
General Contractors of Massachusetts, Inc., the Building Trades Em-
ployers Association of Boston and Eastern Massachusetts, Inc., the
Worcester General Building Contractors Association, the South-
eastern Massachusetts General Contractors Association, and the
Labor Relations Division of the Construction Industries of Massa-
chusetts. The Respondent admits the status of the Associated General
Contractors of Massachusetts, Inc., et al., as employer associations
which exist for the purpose of negotiating and administering collec-
tive-bargaining agreements on behalf of their employer members.
5 In March 1990 Local 275 received a letter that purported to be
from an attorney acting on behalf of the Respondent. The letter ad-
vised that the Respondent intended to withdraw from the 1986–1989
agreement as of May 31, 1990. But: (1) the contract to which the
letter referred was no longer in effect; (2) the letter was not timely
as respects the 1989–1993 contract; and (3) for reasons I specified
at the hearing, I did not admit the letter into evidence.
notice of termination with respect to a collective bar-
gaining agreement, then such agreement shall remain in
effect until a successor agreement is entered into. . . .
. . . .
5. The collective bargaining agreements between the
Employers and the Unions provide among other things
for contributions to Health and Welfare Funds, Pension
Fund, Annuity Fund, Apprentice and Training Funds
and the Employer agrees to be bound by the terms of
the respective Agreements and Declaration of Trust.
I will henceforth refer to this agreement as ‘‘the 1987 agree-
ment.’’
As of the date of execution of the 1987 agreement, Local
275 and Local 1305 each were parties (along with other Car-
penters locals) to a collective-bargaining contract with var-
ious of the employer associations named in the agreement.4
Both of the contracts were for the period June 1, 1986,
through May 31, 1989, and both contracts clearly were ‘‘col-
lective-bargaining agreements between the Employers and
the Unions’’ as referenced in paragraph 1 of the 1987 agree-
ment.
Those two 1986–1989 collective-bargaining contracts were
succeeded by a contract between the employer associations,
on the one hand, and, on the other, both Local 275 and Local
1305 (along with other Carpenters locals) that became effec-
tive in June 1989 and remains in effect until May 1993
(hereafter the 1989–1993 contract). The 1989–1993 contract
is unambiguously ‘‘successive agreement’’ within the mean-
ing of the 1987 agreement.
The collective-bargaining contracts, of course, covered
‘‘employees engaged . . . in the building and construction
industry,’’ and the Carpenters locals are labor organiztions
‘‘of which building and construction employees are mem-
bers,’’ within the meaning of Section 8(f) of the Act.
Prima facie, therefore, the Respondent was bound by the
1986–1989 and 1989–1993 collective-bargaining contracts.
E.g., Reliable Electric Co., 286 NLRB 834, 835–836 (1987).
Respondent, however, contends on various grounds that
the 1987 agreement should not be construed to bind the Re-
spondent to the 1989–1993 collective-bargaining contract.
As far as the facts go, the Respondent’s strongest argu-
ment is that the union representative who presented the 1987
agreement to Holloway told Holloway that it would only
apply to the job the Respondent then had underway. I credit
Holloway’s testimony to that effect. But the words of the
1987 agreement that Holloway signed directly conflict with
the oral statement of the union representative about the tem-
porary effect of the agreement. Holloway had to have been
aware of that if he read the agreement before he signed it.
And if he did not read it, he should have. I accordingly con-
clude that that oral understanding does not limit the applica-
bility of the 1987 agreement. See Beech & Rich, Inc., 300
NLRB 882 (1990) (written contract, not oral agreement, con-
trols, since the oral understanding ‘‘would not merely explain
or clarify the parties’ intent regarding visions of the . . .
agreement but would instead invalidate and nullify the writ-
ten agreement’’).
As for the applicability of the 1989–1993 contract, the Re-
spondent could have avoided its effect by giving timely no-
tice to the Carpenters (as, indeed, par. 2 of the agreement
specifies). But the Respondent did not so.5
At the time Holloway signed I the agreement he was not
shown, nor had he otherwise seen, any of the collective-bar-
gaining contracts to which the agreement referred. Because
of that, because the 1987 agreement merely refers to then-
existing collective-bargaining contracts without describing
their contents, and because the agreement refers to docu-
ments not yet in existence when the agreement was executed
(that is, to successor collective-bargaining contracts), the Re-
spondent contends the 1987 agreement is invalid. But the cir-
cumstances that obtained at the time of the agreement’s exe-
cution by the Respondent are altogether commonplace in the
building and construction industries, as are the terms of the
agreement. See, e.g., Consumers Asphalt & Concrete Co.,
295 NLRB 749 (1989).
Finally, the Respondent argues that the Carpenters ‘‘co-
erced’’ it into signing the 1987 agreement. But all the Car-
penters did was to insist that the general contractor live up
to the terms of its collective-bargaining agreement, to urge
that the Respondent enter into a collective-bargaining rela-
tionship with the Carpenters, and to threaten to picket the
jobsite if the general contractor and the Respondent did not.
From the viewpoint of the Respondent that may indeed
amount to coercion. But those communications by the Car-
penters were not unlawful. See Laborers Local 1184 (NVE
Constructors), 296 NLRB 1325, 1328 (1989).
In sum, I concluded that the Respondent was, and is,
bound by the terms of the 1986–1989 and 1989–1993 collec-
tive-bargaining contracts referred to above.
C. The Respondent’s Failure to Abide by the Collective-
Bargaining Agreements
1. The Respondent’s work in Concord, Massachusetts
It is undisputed that the Respondent engaged in acoustical
work as a subcontractor at the state prison in Concord during
the years 1989 and 1990. Concord comes within Local 275’s
geographic jurisdiction, and the acoustical ceiling work done
by the Respondent comes within the ‘‘trade autonomy’’ of
the Carpenters. Accordingly the work was covered by the
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Respondent’s work at the Concord prison was conducted
pursuant to two separate contracts with the State.
7 There are hearsay issues associated with both the authorization
cards and the payroll records. (There was no testimony from the per-
sons who signed the cards, from anyone who saw the cards being
executed, from any Westcott employee (regarding the payroll
records), or from any Holloway employee who was familiar with the
payroll records.) But because of various considerations discussed at
the hearing, including the Respondent’s failure to comply with a
General Counsel subpoena duces tecum covering documents relevant
to the Respondent’s work at the jobsites discussed in this decision
and which plainly were, or should have been, in the Respondent’s
possession (such as payroll records), I admitted the cards and payroll
records that Local 1305 had obtained into the record and deem them
to be evidence that the persons named therein were in fact employ-
ees of the Respondent. In any case, even were such documents ex-
cluded from the record, I would nonetheless find that the Respondent
employed, at the Nantucket jobsite, employees doing work within
the scope of the 1989–1993 contract.
1989–1993 contract to which the Respondent is a party by
virtue of the 1987 agreement.6
Some, perhaps all, of the persons who did the work for
the Respondent at the prison were not members of Local 275
even though the 1989–1993 contract requires that all of its
unit employees ‘‘become and remain members of [the Car-
penters] in good standing’’; the Respondent never made any
fringe benefit or other payments to the Carpenters as man-
dated by articles XVI, XVII, and XVIII of the 1989–1993
contract; and the Respondent failed to remit any of the dues
and fees that the contract specifies that employers should de-
duct from employee wages.
The Respondent’s position, as advanced at the hearing by
Holloway, is that the Respondent had no employees of its
own at the site. Rather, Holloway claimed, subcontractors of
the Respondent handled the labor part of the work (and only
the labor part). Thus, the Respondent argues, it had no pay-
ments to make under the collective-bargaining contract.
I consider the Respondent’s position in the matter to be ut-
terly unconvincing.
For openers, the 1989–1993 contract permits the Respond-
ent to subcontract work within the jurisdiction of the Car-
penters only to companies that are, or become, parties to the
contract. It is undisputed that, if the Respondent really had
any such subcontracts, its subcontractors were not parties to
the contract.
But that is beside the point, because Holloway’s testimony
that the Respondent had no employees on the site was en-
tirely unbelievable. Holloway pointed to no written sub-
contract and could not even describe any oral subcontract ex-
cept in the vaguest kind of way. Indeed, Holloway did not
know, he said, who it was who did employ the persons who
actually did the work that the Respondent had contracted to
do.
Finally, even assuming, arguendo, that the Respondent
really did have contracts with one or more entities by which
those entities provided the Respondent’s labor force, the Re-
spondent was the employer of those ‘‘acoustical ceiling
guys’’ (as Holloway referred to them) since they were super-
vised by agents of the Respondent and used materials that
the Respondent supplied to them.
Because the Respondent, at the Concord prison site, em-
ployed employees who engaged in work covered by the
1989–1993 contract, because the Respondent is a party to
that contract, and because the Respondent did not make the
benefit fund and other payments required by that contract or
deduct and remit the required dues and fees, I conclude that
the Respondent violated Section 8(a)(1) and (5) of the Act.
2. The Respondent’s work at the Nantucket water
treatment plant
In the summer of 1990 the Respondent became a subcon-
tractor at a water treatment plant on Nantucket. The general
contractor for the project was Westcott Construction. The
Respondent’s subcontract was for the installation of drywall
and ceilings. Nantucket is within the geographic jurisdiction
of Local 1305, and the installation of drywall and ceilings
is covered by the 1989–1993 contract. Nonetheless, the Re-
spondent did not make the benefit fund and other payments
required by that contract.
Again, Holloway testified that the Respondent had no em-
ployees at the site—that all of the work done under the Re-
spondent’s subcontract was handled by employees of compa-
nies to which the Respondent subcontracted out the labor
portion of the work. And again, in respect to the Respond-
ent’s work at the Concord prison site, I find that Holloway’s
testimony was not credible and that: (1) the persons who
were doing the work called for by the Respondent’s sub-
contract with Westcott were employees solely of the Re-
spondent; and (2) assuming, arguendo, the Respondent did
subcontract out the labor portion of its subcontract with
Westcott, (a) the Respondent violated its obligations under
the 1989–1993 contract since such subcontractors were not
parties to the 1989–1993 contract, and (b) the persons who
did the work called for by the Respondent’s subcontract with
Westcott nonetheless were employees of the Respondent
since they were supervised by agents of the Respondent.
Indeed the evidence is even more compelling in respect
the Nantucket project than in respect to the Concord work:
The record contains authorization cards signed by persons
doing carpentry work at the Nantucket site which cards list
‘‘W. J. Holloway’’ as the ‘‘employer’’; and payroll records
that the Respondent submitted to Westcott list several named
persons as Respondent’s ‘‘employees’’ at the site (some of
whom were in turn, designated on the payroll records as
‘‘carpenters’’).7
I conclude that the Respondent violated Section 8(a)(1)
and (5) of the Act by failing to comply with its obligations
under the 1989–1993 contract in respect to its work in 1990
as a subcontractor at the Nantucket water treatment plant.
3. The Respondent’s work at the Harbor Terrace
housing project
In 1990 the Respondent began work on a subcontract at
the Harbor Terrace housing project in Fall River, Massachu-
setts. Peabody Construction is the general contractor there.
Fall River is within the geographic jurisdiction of Local
1305, and at least some of the work called for by the Re-
spondent’s subcontract with Peabody is the kind of work
covered by the 1989–1993 contract.
Again, Holloway testified that the Respondent used no em-
ployees at the site, that the Respondent subcontracted out to
other entities all of the labor called for by its contract with
491W. J. HOLLOWAY & SON
8 Payroll records relevant to the Harbor Terrace project presented
evidentiary issues similar to the documents related to the Nantucket
project, and my rulings were the same.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Peabody. And again, for precisely the same reasons dis-
cussed in in connection with the Respondent’s work at the
Concord and Nantucket sites, I conclude that the persons
who did the carpentry work by which the Respondent met
its obligations under its subcontract with Peabody were em-
ployees of the Respondent.8
Since none of the Respondent’s employees at the Harbor
Terrace project were, or became, members of the Carpenters,
since the Respondent did not make the benefit fund and other
payments required by the 1989–1993 contract, and since the
Respondent neither deducted from its employees’ wages, nor
remitted, the appropriate dues and fees, I conclude that the
Respondent violated Section 8(a)(1) and (5) of the Act.
The General Counsel urges that there was an additional
failure by the Respondent to comply with its contractual ob-
ligations to the Carpenters in respect to the Harbor Terrace
project in Fall River. Article V of the 1989–1993 contract re-
quires that employers ‘‘give preference in the employment of
the majority of their carpenters to those who normally work
in the geographical area for which each agent [i.e., local
union] is responsible.’’ Yet the payroll records from the Har-
bor Terrace project show that none of the carpenters whom
the Respondent employed at the project live within Local
1305’s geographic jurisdiction, and that some live a consider-
able distance from Fall River (Lowell, for instance).
The question, however, is not where those carpenters live
but, rather, where they ‘‘normally work.’’ Since there is
nothing in the record about that, I am not in a position to
find that the Respondent failed to comply with article V of
the 1989–1993 contract.
Unit Issues
The complaints allege the following unit is appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act:
All employees employed by the Respondent performing
carpentry work as defined [in the 1989–1993 contract]
but excluding all other employees, office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act.
In its answers the Respondent denied those unit allega-
tions. But the Respondent did not further refer to the unit
issue either at the hearing or in its brief.
By Holloway’s execution of the 1987 agreement, the Re-
spondent agreed that those of its employees doing carpentry
work, as that term is defined by collective-bargaining con-
tracts referred to in the agreement, would be represented by
the Carpenters. The unit that the complaints allege to be an
appropriate unit accordingly is identical to the contractual
unit (except that the contractual unit may include certain su-
pervisors). And an agreed-on unit will not be upset unless it
is clear that it contravenes an express provision of the Act
or established Board policy. See, e.g., Harvey Russell, 145
NLRB 1486, 1488 (1964). Since the alleged unit does nei-
ther, I find it to be a unit appropriate for the purposes of col-
lective bargaining.
I further find that, for a least the period February 11,
1987, to May 31, 1993, the Carpenters have been, and will
be, the exclusive collective-bargaining representative of the
unit.
REMEDY
There is no evidence that the wages that the Respondent
paid its carpentry employees were less than those specified
in the 1989–1993 contract. But the record does show that the
Respondent, in respect to the Concord, Nantucket, and Fall
River projects referred to earlier, has failed either to make
the benefit fund or other payments called for by the contract
or to remit to Locals 275 and 1305 the dues and fees that
it should have deducted from employees’ wages pursuant to
the terms of the contract.
The recommended Order requires the Respondent to remit
Locals 275 and 1305 such dues and fees, with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). As for the benefit fund and other payments, the
determination of which such payments the Respondent
should have made and the amounts necessary to remedy the
Respondent’s failure to comply with its contractual obliga-
tions in this respect will be left to the compliance stage. See
Merryweather Optical Co., 240 NLRB 1213 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, W. J. Holloway & Son, Boston, Massa-
chusetts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to adhere to the 1989–1993 collec-
tive-bargaining contract between, on the one hand, Local
Unions 275 and 1305 of the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO, and various other
Carpenters locals located in Massachusetts, and, on the other
hand, the Associated General Contractors of Massachusetts
and various other associations of employers located in Mas-
sachusetts, and to successor contracts unless the Respondent
effects proper and timely withdrawal therefrom.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make employees whole by making the benefit fund and
other payments mandated by the 1989–1993 collective-bar-
gaining contract that the Respondent failed to make, and by
remitting to Local Unions 275 and 1305 the dues and fees
it should have deducted from its employees’ wages pursuant
to the terms of the contract, together with interest thereon as
provided in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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
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.’’
and reports, and all other records necessary to determine the
amounts due under the terms of this Order.
(c) Post at its facility in Boston, Massachusetts, and at its
jobsite at the Harbor Terrace project in Fall River, Massa-
chusetts (if the Respondent remains engaged in construction
there), copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Regional Di-
rector for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately 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
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.