W.L. Miller Co.

National Labor Relations Board - Board Decisions

Jul 23, 1987

284 N.L.R.B. 1180 (N.L.R.B. 1987)

1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
W. L. Miller Company and Eastern Missouri Labor-
ers' District Council. Case 17-CA-9854
23 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 19 August 1981 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed an answering
brief.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions, as modified, and to adopt the recom-
mended Order as modified.
The issue is whether the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to
comply with the terms of a collective-bargaining
agreement between the Union and a multiemployer
group. For the reasons discussed below we find
that the Respondent has violated the Act as al-
leged.
The Respondent is an asphalt and paving con-
tractor in the construction industry. In February
1979, the Respondent joined Associated General
Contractors of Missouri (AGCM), a multiemployer
association. However, it did not become a party to
AGCM's then current collective-bargaining agree-
ment with the Union.
On 5 February 1980 AGCM sent a letter and
designation of representative form to its members
encouraging them to designate a committee to ne-
gotiate on its behalf a labor agreement effective 1
May 1980. The Respondent was one of 80 employ-
ers who executed the designation form. The desig-
nation form indicated that after 10 May no agree-
ment negotiated by the committee would be bind-
ing on the signatories. The cover letter specified
that a majority of the contractors who signed the
designation shall determine whether or not the
agreement should be accepted and executed.
The parties reached tentative agreement and on
6 May 1980 the Association sent a bulletin to its
members urging that delegates be sent to an 8 May
contract ratification meeting where a majority vote
would be binding. The contract, effective from 1
May 1980 through 30 April 1983, was ratified and
by a bulletin dated 9 May the contractors were so
advised. Neither at the time the Respondent exe-
cuted the designation, nor at any other relevant
time, have any of the Respondent's employees been
members of the Union.
Following unsuccessful attempts to cause the Re-
spondent to comply with the 1980-1983 contract,
and on being advised on 23 July 1980 by a letter
from the Respondent's attorney that the Respond-
ent had never been a party to the contract and was
thereby giving notice of terminating the contract,
the Union filed the instant charge.
The Respondent contends that it was not bound
by the contract because, inter alia, (1) the Respond-
ent had no unequivocal intention to be bound by
group action but rather signed the designation in-
advertently; (2) its relationship, if any, with the
Union was an 8(f) prehire relationship, not a 9(a)
relationship, thereby requiring the Union to estab-
lish a majority on each jobsite where the Respond-
ent hired on a jobsite-by-jobsite basis, having no
stable work force or complement of employees;
and (3) that because of the existence of an 8(1) pre-
hire relationship, the Respondent could withdraw
from the multiemployer unit and terminate any
contract under which the Union failed to be desig-
nated or selected by a majority of its employees.
The judge rejected these defenses. He found (1)
that the language of the correspondence between
the Respondent and the AGCM was clearly at
variance with the Respondent's alleged intention to
or belief that it had merely designated the commit-
tee to bargain for it, but not to bind it, and that the
correspondence was not ambiguous or misleading;
(2) that the 8(1) relationship between the Respond-
ent and the Union converted to a 9(a) relationship
as a consequence of merging the Respondent's unit
employees with those of the 79 other signatories in
the multiemployer association where the Union had
majority support; and (3) that the Respondent has
continuously employed unit employees.'
Subsequent to the judge's decision, the Board de-
cided in John Deklewa & Sons, 2 that it would no
longer apply the conversion doctrine, relied on by
the judge, to collective-bargaining agreements!-
relationships permitted under Section 8(1) of the
Act. 3 In doing away with the conversion doctrine
as applied to collective-bargaining agreements per-
mitted under Section 8(f), the Board held that, in
light of the legislative history of Section 8(1) and
the prevailing practice in the construction industry,
the party to an 8(f) relationship who asserts the ex-
We adopt both the judge's reasomng and conclusions regarding the
Respondent's defense based on mistake.
2 282 NLRB 1375 (1987)
3 Under the conversion doctrine, a collective-bargaining relation-
ship/agreement permitted under Sec. 8(1) could convert into one cogniza-
ble under Sec. 9(a) simply on the basis of a showing that, during a rele-
vant period, the Union enjoyed the support of a majority of the employ-
er's employees m an appropriate unit.
284 NLRB No. 127
W. L. MILLER CO. 1181
istence of a collective-bargaining relationship under
Section 9(a) has the burden of affirmatively prov-
ing the existence of such a relationship, through
either (I) a Board-conducted representation elec-
tion or (2) a union's express demand for and an em-
ployer's grant of recognition, based on a clear
showing of support for the union among a majority
of the employees in an appropriate unit. However,
we also held in Deklewa that a union signatory to
an agreement permitted by Section 8(f) acquires
limited status as a representative under Section 9(a),
to the extent that the 8(f) agreement may not be
unilaterally repudiated during its term, and may be
enforced during its term under the provisions of
Section 8(a)(5) and Section 8(b)(3).
We further held in Dcklewa that in determining
appropriate units for election purposes, the Board
will no longer distinguish between "permanent and
stable" and "project by project" work forces and
single employer units will normally be appropriate.
The merger doctrine was rejected in 8(f) cases be-
cause it can operate to bind a single employer and
employees to full 9(a) status without providing em-
ployees the opportunity to express representational
preferences since Section 8(1) eliminates majority
status as a prerequisite for signing a contract. We
clearly stated, however, that we did not imply that
muhiemployer associations and bargaining are no
longer appropriate in the construction industry. We
held in Deklewa, that employees of a single em-
ployer cannot be precluded from expressing their
representational desires simply because the employ-
er joined a multiemployer association.
In this case, there was no Board election or
demand for and a voluntary grant of recognition to
the Union premised on a showing of support for
the Union among a majority of the Respondent's
employees. Rather, the record establishes that the
parties voluntarily entered into their agreement in
May 1980 without regard to whether the Union
had support of a majority of the Respondent's em-
ployees. The Respondent is an employer in the
construction industry, and a member of AGCM. A
majority of the contractor members who were sig-
natory to the AGCM's then-current labor agree-
ment with the Union, which agreement contained a
union-security clause making union membership
mandatory, signed the designation form agreeing to
be bound by group action, as did the Respondent.
Subsequently, the employer's designated bargaining
agent negotiated and executed the contract in dis-
pute. Therefore, we find that the Respondent was
bound by this contract which is enforceable and
not subject to unilateral repudiation. We further
find that the Respondent repudiated its 1980-1983
collective-bargaining agreement with the Union
during the term of the agreement. However, also
under Deklewa, the Union enjoyed no presumption
of majority status following the contract's expira-
tion date of 30 April 1983, and thus at that point
the Respondent was free to repudiate the 8(1) bar-
gaining relationship. Therefore, we fmd that the
Respondent violated Section 8(a)(5) and (1) of the
Act by repudiating the 1980-1983 contract with
the Union during the contract term and shall limit
the make-whole remedy accordingly.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By repudiating its 1980-1983 collective-bar-
gaining agreement with the Union and refusing to
recognize the Union during the term of the collec-
tive-bargaining agreement, the Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
4. The unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act. We shall order the Respondent to make its
employees whole, in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), for any
losses they may have suffered as a result of the Re-
spondent's failure to adhere to the contract from 1
May 1980 through 30 April 1983, with interest on
any amounts due paid in the manner prescribed in
New Horizons for the Retarded.4
ORDER
The National Labor Relations Board orders that
the Respondent, W. L. Miller Company, Kirksville,
Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize the Eastern Missouri
Laborers' District Council, during the term of a
collective-bargaining agreement, as the exclusive
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out ni the 1986 amend-
ment to 26 U.S C. § 6621
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative of the Re-
spondent's employees covered by the agreement.
(b) Refusing to adhere to its 1980-1983 collec-
tive-bargaining agreement with the Union through
the 30 April 1983 expiration date.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole the above-described employees,
in the manner set forth in the remedy, for any
losses they may have suffered as a result of the Re-
spondent's failure to adhere to the contract from 1
May 1980 through 30 April 1983.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Missouri places of business copies
of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, 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) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by the Union, if willing, in
conspicuous places where notices to employees and
members are customarily posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps 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 Nation-
al 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."
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 ordered us to post and abide by this notice.
WE WILL NOT during the term of a collective-
bargaining agreement, refuse to recognize the East-
ern Missouri Laborers' District Council, as the ex-
clusive collective-bargaining representative of our
employees covered by the agreement.
WE WILL NOT refuse to adhere to our 1980-1983
collective-bargaining agreement with the Union
through the 30 April 1983 expiration date.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole our employees for any
losses they may have suffered as a result of our
failure to comply with our collective-bargaining
agreement with the Union, from 1 May 1980
through the expiration of the agreement on 30
April 1983, plus interest.
W. L. MILLER COMPANY
Richard A. Auslander, Esq., for the General Counsel.
Jack Whitacre, Esq. (Spencer, Pane, Britt & Browne), of
Kansas City, Missouri, for the Respondent.
Jess Mom, Esq., of Clayton, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Kansas City, Kansas, on April 28,
1981. The initial charge was filed on August 12, 1980,1.
by Eastern Missouri Laborers' District Council (the
Union), and an amended charge was filed by the Union
on September 8.
Thereafter, on September 10, the Regional Director
for Region 17 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing al-
leging a violation by W. L. Miller Company (Respond-
ent) of Section 8(a)(5) and (1) of the National Labor Re-
lations Act, as amended (the Act).
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
All dates or time periods are within 1980 unless otherwise specified.
W. L. MILLER ca 1183
hearing, briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Charging Party.
On the entire record, 2 and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an asphalt and paving contractor with its
principal office and place of business in Hamilton, Illi-
nois, has maintained a facility in Kirksville, Missouri, and
has performed contracting work within the State of Mis-
souri at all times material. In the course and conduct of
its business operations within the State of Missouri, Re-
spondent annually purchases goods and services valued
in excess of $50,000 directly from outside the State of
Missouri. It is admitted, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union and its affiliated local
unions are, and have been at all times material, labor or-
ganizations within the meaning of Section 2(5) of the
Act.
A. The Issue
The principal issue raised by the pleadings is whether
Respondent violated and is violating Section 8(a)(5) and
(1) of the Act by refusing to abide by the terms of a col-
lective-bargaining agreement reached between the Union
and a multiemployer group.
B. The Facts
Respondent has conducted its business operations
within the Union's geographic jurisdiction in Missouri at
least since 1972, but has had no ongoing collective-bar-
gaining relationship with the Union. 3 Further, not until
February 19, 1979, when Respondent's application for
membership in Associated General Contractors of Mis-
souri (the Association) was approved, did Respondent
maintain any relationship with the Association. Although
Respondent became a member of the Association on the
aforementioned date, it did not become a party to the
then current collective-bargaining agreement between
the Union and the Association. Moreover, at this time,
Miller specifically advised Duane Kraft, manager of the
Association, that Respondent had operated on an open-
shop basis in Missouri ever since the commencement of
2 Errors in the transcript are noted and corrected.
3 The record shows that on July 30, 1973, Respondent signed the then
current 1971-1974 agreement between the Union and the Associated
General Contractors of Missouri Contrary to the testimony of Respond-
ent's president, Robert Miller, who testified that he does not remember
signing the agreement and therefore does not believe that the signature it
bears is his signature. I find that he did mdeed execute and enter into the
said agreement, which contains a notation by Miller that he was signing
it "for year 1973." The record shows that during portions of 1973 and
1974, Respondent made payments to the Union's fringe benefit funds.
its Missouri business operations, and desired to continue
to do so.
On February 5, 1980, the Association sent certain cor-
respondence, consisting of a covering letter and an ac-
companying form, to all of its contractor members, in-
cluding Respondent. The covering letter states as fol-
lows:
TO: Contractor Members
FROM: Gene Penzel
SUBJ: Bargaining Rights
On April 30, 1980, the labor agreements with the
Teamsters, Carpenters, Laborers, and Operating En-
gineers in the State of Missouri will expire. In order
to strengthen the position of construction employ-
ers, the Labor Committee of the Associated Gener-
al Contractors of Missouri has decided to recom-
mend that its members who are signatory to the
current labor agreements designate a committee to
act as their agent in hopes of obtaining a more fa-
vorable settlement.
The enclosed designation of representative has
been prepared by labor counsel at the request of the
Labor Committee. It designates a committee com-
posed of Gene Fenzel Wm. E. Herzob, Irvin H.
Garms, and Shaun O'Rourke, who were selected by
the Labor Committee of the Associated General
Contractors of Miss°Uri, to negotiate for the con-
tractors signing the designation. This committee
will negotiate with the four crafts for a heavy, high-
way and utility contract covering all Missouri coun-
ties except Jackson, Clay, Platte, Ray, St. Louis,
and the City of St. Louis.
The designation of representative is not open-
ended or unlimited. It has been carefully prepared
so that if agreements are not reached by noon, May
10, 1980, the committee can no longer act on your
behalf or negotiate agreements on your behalf.
Also, you have the option of designating specifical-
ly the crafts with whom the committee is to negoti-
ate. Simply place your initials by the craft(s) you
use on your construction projects.
Under the procedures adopted by the negotiating
committee, if and when a tentative agreement is
reached with the crafts prior to noon, May 10,
1980, a majority of the employers who have signed
the designation with respect to that craft will deter-
mine whether or not the agreement should be ac-
cepted and executed. Such a vote will be taken only
after a meeting where you will be given an oppor-
tunity to review the proposed agreement. If agree-
ments are not reached and ratified by noon on May
10, 1980, a meeting will be held in Jefferson City to
review the situation and determine whether the
committee should continue. You will have an op-
portunity then to determine whether the committee
should be further authorized to act for your compa-
ny.
Under the above concept, we believe that you
will have much to gain and little to lose by execut-
ing the designation. In effect, for a critical period
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
up to ten days after contract expiration, we urge
our members to act together in an effort to improve
and devolop state wide labor agreements which will
further the interest of construction employers.
Please return the white executed and initialed
designation in the enclosed envelope by January 18,
1980.4 Retain the blue copy for your files.
If you have any questions concerning this, call
Irvin Garms, Bill Herzog, Shaun O'Rourke, Duane
Kraft or myself.
Sincerely,
/s/ Gene Penzel
Gene Penzel, Chairman
Labor Committee
The enclosed designation of representative referred to
in the letter reads as follows:
DESIGNATION OF REPRESENTATIVE
The undersigned individual, partnership, joint
venture or corporation hereby designates a conunit-
tee composed of Gene Penzel, Chairman, William
E. Herzog, Irvin H. Garms and Shaun O'Rourke
(or such successors as may be appointed by them)
to negotiate on its behalf a labor agreement effec-
tive May 1, 1980, with representatives of certain
labor unions for a statewide agreement for certain
craft work (as initialed below) to be performed on
public and private, heavy, highway and utility con-
struction in the State of Missouri (except Jackson,
Clay, Plate, Ray and St. Louis Counties, and the
City of St. Louis).
The designation shall be effective when signed
and shall remain in effect until 12:00 noon, May 10,
1980. Said committee shall have no further author-
ity to negotiate on behalf of the undersigned and no
agreement negotiated or concluded by said commit-
tee after that time and date will be binding on the
undersigned. This designation is conditioned on ac-
ceptance by said labor unions prior to the start of
negotiations of this provision concerning withdraw-
al and termination of authority. This designation
shall not be applicable to other work, crafts or trade
or to workers in other units not represented by said
labor unions on the date hereof.
pleted and signed the designation of representative form5
and gave it to his office manager, instructing him "to
check on this and before he mailed it to check with Mr.
Kraft [manager of the Association] and make sure this
wouldn't obligate us to their agreements before we put it
in the mail."
Negotiations between the committee and the Union
commenced in early March, and at the first negotiating
session Myrl Taylor, secretary-treasurer and business
representative of the Union, requested a list of contrac-
tors who had designated their bargaining rights to the
committee. Thereupon, the Union was handed a list with
the following heading:
DESIGNATION OF REPRESENTATIVE
The undersigned individual, partnership, joint
venture or corporation hereby designates a commit-
tee composed of Gene Penzell, Chairman, William
E. Herzog, Irvin H. Garms and Shaun O'Rourke
(or such successors as may be appointed by them)
to negotiate on its behalf a labor agreement effec-
tive May 1, 1980.
Respondent's name appeared among the 80 names listed
thereunder.
The parties reached tentative agreement on the provi-
sions of a new collective-bargaining agreement after sev-
eral negotiating sessions, and on May 6 the Association
sent the following bulletin to contractor members:
A key member of your firm is urged to attend a
meeting at 2 p.m., this Thursday, May 8 in Jefferson
City at the Rodeway Inn, Room 101 to consider a
contract proposal from 0.E. 513 and the Eastern
Missouri District Council of Laborers.
These contracts may have a significant material
effect upon your business operations.
One item that might concern you has to do with
old work old pay provisions. These provisions are
eliminated in the Operating Engineers Agreement
on all work bid prior to May 1, 1980.
Those attending the meeting will be asked to
accept or reject each contract. A majority attending
and voting will bind you.
. . . .
(Name)
(Partnership, Corporation,
Joint Venture, Sole
Proprietor)
By
(Address)
Date
THE LABORERS PROPOSAL WOULD
REQUIRE:
1. The local union to have the first man except in
certain instances;
2. Require that laborers be given time to stop and
eat lunch and supper in certain instances;
3. Change Saturday make-up day provisions;
4. Eliminate certain provisions in the subcontrac-
tor language.
Please initial one or
more of the following
Operating
Engineers
Laborers ____
Carpenters
Teamsters
Miller testified that he did not recall receiving the
covering letter, but admits that on February 8, he com-
4 Apparently this date is a typographical error.
5 Miller checked the blanks opposite "Operatmg Engineers," "Labor-
ers," and "Teamsters" as Respondent then had employees performing
work that would customanly come within the jurisdiction of the desig-
nated unions.
W. L. MILLER CO. 1185
ONE VOTE PER COMPANY
The contract was ratified at the aforementioned meet-
ing, and by a bulletin dated May 9, the contractors were
so advised that the contract had been agreed on. The
contract, extending from May 1, 1980, through April 30,
1983, contains the following initial paragraph:
This agreement is entered into this 1st day of May,
1980, between each of those employers who have
assigned bargaining rights to a committee and the
Associated General Contractors of Missouri, acting
as agent for and on behalf of those of its other
members (hereinafter referred to as "Employers" or
"Contractors") who accept and sign this agreement
or a fascimile thereof and the Eastern Missouri La-
borers' District Council and their affiliated local
unions in the State of Missouri, hereinafter called
"Unions."
There is no provision in the Association bylaws that
binds a contractor-member to any labor agreement. At
least from 1971 to 1980, individual contractor-members
were not prebound by the successive agreements negoti-
ated between a committee of the Association and the
Union, but rather thereafter each contractor determined
whether it was in its best interest to sign the agreement.
Thus, at no time prior to the instant matter did the Asso-
ciation solicit or receive "Designation of Representative"
or similar forms from its members prior to negotiations
with the Union. The first paragraph of the 1977-1980
agreement contains language so reflecting this procedure,
as follows:
This Agreement is entered into this 1ST DAY OF
MAY, 1977, between the Associated General Con-
tractors of Missouri acting as negotiating agent for
and on behalf of those of its members (hereinafter
referred to as "Employers" or "Contractors") who
accept and sign this Agreement or a facsimile there-
of and the Eastern Missouri Laborers District
Council and the Western Missouri and Kansas La-
borers District Council and their affiliated local
unions in the State of Missouri hereinafter called the
"Unions."
According to Frank Taggart, administrator for the
construction industry laborers welfare, pension, and va-
cation fund, which receives, inter alia, contributions by
signatory employers on behalf of unit employees, the
records maintained by him show that approximately 1000
employees of the 80 aforementioned contractors who
signed designation forms had their monthly dues checked
off and paid to their respective local unions in the
months of April, May, and June.
Following unsuccessful attempts, verbal and written,
to cause the Respondent to comply with the terms of the
aforementioned 1980-1983 contract, and on being ad-
vised on July 23 by a letter from Respondent's attorney
that Respondent had never been a party to the contract
and was thereby giving notice of terminating the con-
tract, the Union filed the instant charge.
C. Analysis and Conclusions
In Weyerhaeuser Co., 6 the Board reiterated the test for
determining the existence of a multiemployer bargaining
unit, as follows:
The test to be applied in assessing the status of the
Association as a multiemployer unit is well estab-
lished: it is whether the members of the group have
indicated from the outset an unequivocal intention
to be bound in collective bargaining by group
rather than individual action, and whether the union
representing their employees has been notified of
the formation of the group and the delegation of
bargaining authority to it, and has assented and en-
tered upon negotiations with the group's representa-
tive.°
6 The Kroger Co., 148 NLRB 569; Van Eerden Company, etc.,
154 NLRB 496.
This test has been consistently followed. See Ruan
Transportation Corp., 234 NLRB 241, 242 (1978); North
American Refractories Co., 238 NLRB 480, 487 (1978);
Collier's Custom Kitchens, 243 NLRB 1114, 1117 fn. 8
(1979).
The facts are clear and are not in material dispute.
Prior to the events herein, Respondent has had no recent
bargaining relationship with the Union either on a single-
employer or multiemployer basis, but rather has operated
on a nonunion "merit shop" basis within the Union's ge-
ographic jurisdiction.
HoweVer, on February 9, Respondent's president,
Robert Miller, executed a "Designation of Representa-
tive" form, designating a committee selected by the As-
sociation, of which Respondent was then a current
member, to negotiate for it. The language of the docu-
ment, which states that after May 10 no agreement nego-
tiated by the committee will be binding on the signato-
ries, clearly implies that any agreement negotiated or
concluded by the committee within the timeframe speci-
fied will be binding on the contractors who have execut-
ed the designation. Moreover, the covering letter, which
I find Miller received along with the designation, speci-
fies that a majority of the contractors who have signed
the designation shall determine whether or not the agree-
ment should be accepted and executed.
I find, based on the foregoing, that Respondent and
the other signatories to the designation expressed their
unequivocal intention to be bound by group action, and
that by such conduct, assented to by the Union prior to
the commencement of negotiations, a multiemployer unit
was thereby established. Weyerhaeuser Corp., supra;
Taylor Motors, 241 NLRB 711 (1979).
Respondent contends that the language of the designa-
tion providing for automatic termination of authority on
May 10 does not comport with Board law governing the
multiemployer relationship, arguing that such provisions
are inconsistent with the well-established principle that
withdrawal from multiemployer bargaining is not cus-
6 166 NLRB 299 (1967).
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tomarily permitted following the commencement of ne-
gotiations. 7 I find Respondent's argument to be unper-
suasive, as there appears to be no compelling reason, and
Respondent has proffered none, why such an agreed-on
modus operandi to bargain on a multiemployer basis for
a time certain should not be honored.
The parties readily admit that neither at the time the
Respondent executed the designation, nor at any time
material, have any of Respondent's employees been
members of the Union. However, the General Counsel
and Union maintain that the relationship, which would
have been an 8(1) relationship and thereby viodable had
Respondent entered into a contract with the Union as a
single employer,8 became a 9(a) relationship under the
circumstances herein, having the effect of merging Re-
spondent's unit employees with those of the 79 other sig-
natories.
Such a position appears to comport with Board law.
Thus, in Authorized Air Conditioning Co., 9 although in
the circumstances of the case the union therein did repre-
sent a majority of the employer's employees, the Board
states, supra at fn. 2:
Respondent's reliance on David F. Irvin and
James B. McKelvy, partners, d/b/a The Irvin-
McKelvy Company, 194 NLRB 52 (1971), and other
cases involving bargaining relationships under Sec.
8(f) is misplaced. No question of majority has been
raised in the appropriate multiemployer unit, and
the representative status of the Union among Re-
spondent's employees is immaterial as those employ-
ees constitute only a small segment of the appropri-
ate unit.
Similarly, in Amado Electric, 10 the Board stated, at fn. 1,
that:
In addition, even had the General Counsel failed to
show that the Union represented a majority of Re-
spondent's employees, Respondent would not be
free to repudiate the agreement because Respondent
was a member of a multiemployer bargaining asso-
ciation. Thus, Respondent's employees would con-
stitute only a small segment of the appropriate unit.
See Authorized Air Conditioning Co., 236 NLRB 131
(1978).
Finally, in G & M Lath Co., 11 the Board found, as enuni-
cated by the administrative law judge, that although
there was no evidence that the union represented a ma-
jority of the respondent's employees when that company
became bound to the multiemployer contract, the appro-
priate unit became the multiemployer unit and the
union's majority status with respect to the respondent's
employees was immaterial as its employees would consti-
tute only a small segment of the appropriate unit.
7 See Retail Associates, 120 NLRB 388, 393-395 (1958); Collier's
Custom Kitchens, supra.
8 NLRB v. Iron Workers (Higdon Contracting), 434 U.S. 335 (1978).
9 236 NLRB 131, 134 (1978).
10 238 NLRB 37 (1978)
11 252 NLRB 969 (1980).
Respondent also attacks the Union's majority support
in the multiemployer unit, maintaining that the General
Counsel has failed to establigh such majority. I disagree.
The Association's February 5 letter invited contractor
members who were signatory to the then current labor
agreement with the Union, which agreement contained a
union-security clause making union membership manda-
tory, to sign the designation form. 12 Respondent sug-
gests that the employees of many contractors who exe-
cuted the form, as did Respondent, may not have desired
representation by the Union, and that possibly these em-
ployees were of sufficient number to destroy whatever
majority status the Union may have formerly enjoyed
among those contractors who had maintained a 9(a) rela-
tionship with the Union. I consider Respondent's hypoth-
esis in this regard to be entirely speculative and highly
unlikely, and Respondent did not seek to adduce any evi-
dence whatsoever that would tend to support its conten-
tion. Under the circumstances I End that the Union's ma-
jority status in the multiemployer unit has been estab-
lished.
The unit, as found, may be appropriately described as
all employees employed by members of the multiemploy-
er groups who have designated a committee of the Asso-
ciated General Contractors of Missouri to bargain on
their behalf, engaged in the work of private and public
construction except building construciton in the State of
Missouri as described in article II of the 1980-1983 col-
lective-bargaining agreement between Eastern Missouri
Laborers' District Council and their affiliated local
unions in the State of Missouri.
Respondent maintains that this is an inapproriate unit
as applied to Respondent's employees, inasmuch as its
employees perform a variety of work without regard to
craft jurisdictional lines. Thus, an employee may be ran-
domly called on to perform what is commonly regarded
as laborers', teamsters', or operating engineers' work.
The record, however, contains a list establishing that Re-
spondent has consistently employed a core of employees
who are denominated only as laborers. 13 Thus, it is clear
that Respondent has continuously employed unit employ-
ees as described, and I fmd Respondent's contention re-
garding the inappropriateness of the unit to be without
merit.
Respondent also maintains that any relationship it may
have established with the Union was the result of a mis-
take, and that it had no intention of entering into a col-
lective-bargaining agreement with the Union either
singly or as a member of a multiemployer group. Rather,
Respondent believed that it had merely designated the
committee to bargain for, but not to bind, Respondent in
accordance with the language of the prior contracts,
which permitted the contractors to accept or reject the
contract after it had been negotiated by the committee.
12 The fact that Respondent had not been a signatory to the then cur-
rent labor agreement does not appear to nullify its intent, as found, to be
included within this group, as Respondent was accepted and thereafter
was considered to be a member of the group.
78 The record further shows that the Respondent had no laborers on
its payroll until April 26, when It hired two laborers. It thereafter hired
additional laborers as dictated by its increased business operations.
W. L. MILLER CO. 1187
I find no merit in this contention. The language of the
correspondence set forth above is clearly at variance
with Respondent's alleged intentions or beliefs, and is not
ambiguous or misleading. Therefore, I find that Respond-
ent should have reasonably been aware of the signifi-
cance of its actions. Moreover, even on receiving the
May 6 bulletin that invited Respondent to attend the rati-
fication meeting and, by majority vote that "will bind
you," accept or reject the contract, Respondent took no
affirmative action to seek to forthwith extricate itself
from the consequences of its alleged mistake. In fact, Re-
spondent did nothing until the Union's persistent efforts
to secure compliance with the contract resulted in Re-
spondent's attempt to terminate the contract in July. In
short, Respondent's subsequent belated conduct does not
appear to support its contention that the consequences of
signing the designation was unanticipated. Further, even
assuming arguendo that Respondent had an honest but
mistaken belief regarding the intent of the designation
form that it executed, such a unilateral mistake not in-
duced by another party to the agreement does not oper-
ate as an excuse that would enable Respondent to avoid
its contractual commitment. See Skyline Corp., 613 F.2d
1328 (5th Cir. 1980); Teamsters Local 439 (Pittsburgh
Steel), 196 NLRB 971, 975 (1972).
. On the basis of the foregoing discussion and findings, I
conclude that Respondent has violated Section 8(a)(5)
and (1) of the Act, as alleged. Under the circumstances,
Respondent's inquiry about whether its employees were
either members of the Union or desired union representa-
tion does not appear to be either coercive interrogation
or unlawful direct dealing with employees by Respond-
ent in derogation of its bargaining obligation. I shall
therefore dismiss this allegation of the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3.The unit appropriate for collective bargaining is:
All employees employed by members of the multi-
employer group who have designated a committee
of the Associated General Contractors of Missouri
to bargain on their behalf, engaged in the work of
private and public construction except building con-
struction in the State of Missouri described in Arti-
cle II of the 1980-1983 collective-bargaining agree-
ment between Eastern Missouri Laborers' District
Council and their affiliated local unions in the State
of Missouri.
THE REMEDY
Having found that the Respondent violated and is vio-
lating Section 8(a)(5) and (1) of the Act, I recommend
that it be required to cease and desist therefrom and
from in any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act. Moreover, Re-
spondent shall be required to execute and comply with
the provisions of the aforementioned contract, retroac-
tive to May 1, 1980, and shall further be required to
make whole its employees in the aforesaid bargaining
unit for any loss of pay and other benefits that they may
have suffered by reason of the Respondent's refusal to
abide by and give effect to the collective-bargaining
agreement between the Union and the multiemployer
group, in the manner consistent with Board policy in
Ogle Protection Service, 183 NLRB 682 (1970), with inter-
est to be computed as prescribed in Florida Steel Corp.,
231 NLRB 651 (1977). 14 Also, Respondent shall be re-
quired to post an appropriate attached notice marked
"Appendix,"
[Recommended order omitted from publication.]
14 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).