Construction Erectors, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 319 (N.L.R.B. 1980)

CONSTRUCTION ERECTORS, INC.
Construction Erectors, Inc. and International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, Local 25, AFL-CIO. Case 37-
CA-1528
September 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 18, 1980, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions, a supporting brief,
and a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order. 3
I We hereby find merit in the General Counsel's unopposed limited
cross-exceptions to the Administrative Law Judge's inadvertent reference
to a construction project performed by Kanehamalei Incorporated Con-
struction Company as a project covered by the addendum agreement
signed by Respondent and the Union in October 1975. Neither the com-
pany nor the project referred to were covered by that addendum agree-
ment.
' We agree with the Administrative Law Judge's conclusion that the
Union had achieved majority status in a stable unit of Respondent's em-
ployees on December 10, 1977, when Respondent and the Union execut-
ed a multisite collective-bargaining agreement which Respondent unlaw-
fully repudiated on February 29, 1979. A review of payroll charts and
data introduced as exhibits by the parties indicates that, on the contract
execution date, Respondent had established a permanent complement of
at leat six unit ironworkers which it maintained until the outbreak of a
strike in late November 1978. Although none of the exhibits clearly iden-
tifies which employees worked on each of the projects where Respond-
ent utilized ironworkers or the duration of those projects, the Union's
business manager testified credibly and without contradiction that iron-
workers referred by the Union switched from one of Respondent's pro-
jects to another. At all relevant times priorto Respondent's repudiation of
the multisite contract, it is admitted that the Union dispatched through its
hiring hall at least a majority of Respondent's ironworkers and that
union-security provisions applied to all unit employees. On December 10,
1977, 10 of Respondent's 13 ironworkers were union members. Under all
the aforementioned circumstances, we find that there is a sufficient basis
for characterizing Respondent's ironworkers on that date as a stable work
force distinguishable from those for which a construction industry em-
ployer hires on a project-by-project schedule with no personnel car-
ryover.
s To avoid any possible misinterpretation, we hereby clarify the rea-
sons for our adoption of the Administrative Law Judge's recommenda-
tion that there be no provision for interest on Respondent's obligaton to
fringe benefit trusts. Because the provisions of employee benefit fund
agreements are variable and complex, the Board does not provide at the
adjudicatory stage of a proceeding for the addition of interest at a fixed
rate on unlawfully withheld fund payments. We leave to the compliance
stage the question whether Respondent must pay any additional amounts
into the benefit funds in order to satisfy our "make-whole" remedy.
These additional amounts may be determined, depending upon the cir-
252 NLRB No. 45
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Construction
Erectors, Inc., Honolulu, Hawaii, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
cumstances of each case, by reference to provisions in the documents
governing the funds at issue and, where there are no governing provi-
sions, to evidence of any loss directly attributable to the unlawful with-
holding action, which might include the loss of return on investment of
the portion of funds withheld, additional administrative costs, etc., but
not collateral losses. Merryweather Optical Ca, 240 NLRB 1213 (1979).
DECISION
ROGER B. HOLMES, Administrative Law Judge: The
unfair labor practice charge in this proceeding was filed
on March 13, 1979, by International Association of
Bridge, Structural and Ornamental Iron Workers, Local
625, AFL-CIO, herein called the Union. (See G.C. Exh.
l(a).)
The Regional Director of Region 20 of the National
Labor Relations Board, herein called the Board, who
was acting on behalf of the General Counsel of the
Board, issued on June 13, 1979, a complaint and notice
of hearing against Construction Erectors, Inc., herein
called the Respondent. (See G.C. Exh. I(c).) A typo-
graphical error appears in the General Counsel's com-
plaint caption and in the introductory paragraph of the
complaint concerning the number of the local union. The
testimony and documentary evidence introduced at the
hearing established that the local number was 625 rather
than 624 as shown in the complaint.
The hearing was held before me on October 2, 1979,
at Honolulu, Hawaii. The time for filing briefs was ex-
tended to December 10, 1979. Persuasively argued briefs
have been recieved from the counsel for the General
Counsel and the attorney for the Respondent.
The General Counsel's complaint alleges that the Re-
spondent has engaged in unfair labor practices in viola-
tion of Section 8(aX1) and (5) of the National Labor Re-
lations Act, as amended, herein called the Act. Specifi-
cally, the General Counsel alleges in paragraph 9 of his
complaint that since February 28, 1979, the Respondent
has refused to abide by the terms and conditions of a col-
lective-bargaining agreement with the Union to which,
so the General Counsel contends, the Respondent was
bound. In summary, the General Counsel takes the posi-
tion that the Respondent's unilateral termination of the
contract with the Union constitutes a violation of Sec-
tion 8(a)(X1) and (5) of the Act. (See p. 4 of the brief filed
by the counsel for the General Counsel.)
The Respondent filed an answer to the General Coun-
sel's complaint and denied the commission of the alleged
unfair labor practices. (See G.C. Exh. I(e).) In summary,
the Respondent contends that the contract with the
Union was executed in accordance with the provisions of
319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(f) of the Act, and, under the circumstances of
this case, such a prehire contract was neither binding nor
enforceable. Even assuming, arguendo, that the prehire
contract was enforceable, the Respondent urges that the
contract was terminated according to its own terms, and
that the Respondent has no continuing obligation to bar-
gain with the Union because the Union does not repre-
sent a majority of the Respondent's employees in an ap-
propriate unit. (See p. 2 of the brief filed by the attorney
for the Respondent.)
FINDINGS OF FACT
I. THE EMPLOYER
The Respondent is a Hawaii corporation with a place
of business located in Honolulu, Hawaii, where the Re-
spondent is engaged in the construction business. During
the calendar year preceding the issuance of the General
Counsel's complaint, the Respondent purchased and re-
ceived goods and supplies valued in excess of $50,000 di-
rectly from suppliers located outside the State of Hawaii.
Upon the foregoing facts, which were admitted to be
true in the pleadings, and upon the entire record herein,
I find that the Respondent has been, at all times material
herein, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE UNION
It was admitted in the pleadings that the Union has
been, at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act. Based on
the pleadings, and the entire record in this case, I find
that fact to be so.
III. THE WITNESSES
In alphabetical order by their last names, the following
two persons appeared as witnesses at the hearing in this
proceeding: Duane Kerr is the president of the Respond-
ent, and Paul H. Morikawa is the financial secretary-trea-
surer and the business manager of the Union.
IV. CREDIBILITY RESOLUTIONS
While the parties view the facts from different per-
spectives, and while they urge that different legal con-
clusions be drawn from the facts, as they see them, there
are really no significant conflicts to resolve in the testi-
mony given by the two witnesses.
I recognize that both Kerr and Morikawa hold posi-
tions of importance in their respective organizations, and,
therefore, that each one has an interest in the outcome of
the litigation. In evaluating the accuracy and the reliabil-
ity of their testimony, I have weighed their answers to
certain questions in light of their individual interests.
I have credited the testimony of both Kerr and Mor-
ikawa. I will rely on their accounts in setting forth the
findings of fact which are material herein. In addition, I
will also rely on the documentary evidence which was
introduced at the hearing.
A. The First Contract Between the Respondent and
the Union
In 1974, Kerr had a brief conversation with Herman
"Shorty" Martin on a jobsite on the Island of Kauai,
Hawaii.
Martin was the financial secretary-treasurer and the
business manager of the Union at the time. Martin held
those positions until about 3 months prior to the hearing
in this case, which was held on October 2, 1979. At the
time of the 1974 conversation with Martin, Kerr was the
vice president of Kanehamalei, Incorporated. That com-
pany was building a warehouse for the gas company on
the Island of Kauai.
Martin visited the jobsite with an unidentified person.
Kerr described Martin as being "very belligerent, which
didn't bother me." According to Kerr, Martin "started
out bragging about how many people he had punched
out in the last two months. Secondly, he told me that if I
didn't go through the building trades in Kauai and get
the Kauai iron workers on my job, that he would have a
picket line on it."
On August 6, 1974, Kerr did sign an agreement with
Martin to cover the Kauai project. Kerr stated at the
hearing that he did so, "Not out of fear, but in the inter-
est of expediting the project."
The Respondent was incorporated in February 1974.
At that time Kerr obtained his license. He also purchased
half of Kanehamalei, Incorporated. However, the Re-
spondent did not actually commence operations until late
1975 when Kerr began his business operations with small
contracts, which Kerr himself could perform.
In October 1976 Kerr approached Morikawa with
regard to signing an agreement with the Union. Kerr ad-
vised Morikawa of his commencing of a business which
would employ ironworkers. Kerr made an appointment
to meet with Morikawa on October 5, 1976.
Kerr stated that Morikawa did not threaten him in any
way, and Kerr explained at the hearing that the reason
for his action was "because the contractor who I was
signing my subcontract with stipulated that I had to use
100 percent union help." At the time that Kerr signed
the first contract between the Respondent and the Union
on October 5, 1976, the Respondent did not have any
permanent employees who were performing iron work.
Introduced into evidence as General Counsel's Exhibit
2 was a copy of that agreement, which was entitled a
"Signatory Addendum." The document is dated October
5, 1976. That one-page document makes reference to the
contract between the Union and the Steel Fabricators
and Erectors of Hawaii, and the document acknowledges
acceptance of the terms and conditions of that contract
by the Respondent and the Union. A copy of the collec-
tive-bargaining agreement between the Union and the
Steel Fabricators and Erectors of Hawaii was introduced
into evidence as General Counsel's Exhibit 3. According
to Morikawa, the Respondent did honor the terms and
conditions of that agreement.
Neither the terms of General Counsel's Exhibit 2, nor
the terms of General Counsel's Exhibit 3, limit the appli-
cability of the contract to the Kauai Gas Company pro-
ject, nor to any other specific individual project. Instead,
320
CONSTRUCTION ERECTORS, INC.
the coverage provisions of article 2 of General Counsel's
Exhibit 3 are as follows:
Article 2-Coverage
A. The Union's chartered geographical area of
jurisdiction is the State of Hawaii and those islands
and areas in the Forward Pacific Ocean area which
are under the jurisdiction of the U.S. government.
B. This Agreement applies to and covers only
those employees of the Employer employed as iron-
workers, ironworker apprentices and machine oper-
ators and shall exclude office and clerical employ-
ees, watchmen and/or guards, professional employ-
ees and supervisors and all other employees not em-
ployed on work coming within the scope of this
Agreement.
Article 3 of General Counsel's Exhibit 3 further de-
fines the type of work covered by the contract. Union-
security provisions are set forth in article 4 and hiring
hall referral provisions are set forth in article 5 of Gener-
al Counsel's Exhibit 3. The duration of the contract was
to run through August 14, 1978, and it would renew
thereafter unless either party gave written notice to
modify, amend, or terminate the agreement. However,
either party was entitled to reopen the contract on
August 15, 1977, with regard to the wage rates and the
employer contributions to employee benefit funds.
B. The Second Contract Between the Respondent and
the Union
On August 15, 1977, the Union began an economic
strike against the employers who were parties to General
Counsel's Exhibit 3 through their membership in, or au-
thorization to, the Steel Fabricators and Erectors of
Hawaii and the Reinforcing Steel Companies of Hawaii.
That economic strike lasted until December 10, 1977.
On August 24, 1977, the Respondent and the Union
executed a second contract which was entitled "Interim
Agreement." A copy of that agreement was introduced
into evidence as General Counsel's Exhibit 4. Like Gen-
eral Counsel's Exhibit 2, which was the first contract be-
tween the Respondent and the Union, the second con-
tract was signed by both Kerr and Martin.
Kerr stated that the Respondent did not have any iron-
workers on its payroll during the first 3 weeks of
August, but after the execution of General Counsel's Ex-
hibit 4, the Respondent did employ ironworkers. Kerr
stated that the Respondent could not have obtained its
employees from the Union without executing the interim
agreement.
Among other things, the one-page interim agreement
provided that the Respondent would be bound to the
agreement executed by the Union with the Employer
Bargaining Association referred to above, and it pro-
vided that any wage and other monetary increases set
forth in that agreement would be effective as of August
15, 1977.
C. The Third Contract Between the Respondent and
the Union
On November 18, 1977, the Respondent entered into
its third contract with the Union. A copy of that one-
page document was introduced into evidence as General
Counsel's Exhibit 7. Like the two previous contracts, it
was signed by Kerr and Martin. The document is enti-
tled "Signatory Addendum (Applies to Specific Con-
struction Project Only)."
At the hearing Morikawa explained that the Respond-
ent had a job in the city of Kaneohe on the Island of
Oahu and another project on the Island of Maui, both of
which required reinforcing steel ironworkers. Because
the Respondent needed reinforcing steel ironworkers, as
distinguished from structural ironworkers whom it usual-
ly employed at that time, Morikawa asked Kerr to sign
the signatory addendum for the specific projects in-
volved. However, the projects are not described specifi-
cally in General Counsel's Exhibit 7.
D. The Fourth Contract Between the Respondent and
the Union
Introduced into evidence as General Counsel's Exhibit
5 was a copy of the fourth contract between the Re-
spondent and the Union. It is entitled "Signatory Adden-
dum (Steel Fabricators and Erectors)." The one-page
document is dated December 10, 1977, and it bears the
signatures of Kerr and Martin.
General Counsel's Exhibit 5 makes reference to the
contract between the Union and the Steel Fabricators
and Erectors of Hawaii, and the contract acknowledges
the acceptance of the terms and conditions of that agree-
ment by the Respondent and the Union. A copy of that
agreement was introduced into evidence as General
Counsel's Exhibit 6.
General Counsel's Exhibit 6 has effective dates of
August 15, 1977, to and including, September 1, 1980.
According to article 1 of General Counsel's Exhibit 6,
the contract may be renewed from year to year thereaf-
ter unless either party gives written notice to the other
of its desire to modify, amend, or terminate the agree-
ment.
The coverage of the collective-bargaining agreement,
which was introduced into evidence as General Coun-
sel's Exhibit 6 is set forth in article 2 of that document. It
provides:
Article 2-Coverage
A. The Union's chartered geographical area of
jurisdiction is the State of Hawaii and those islands
and areas in the Forward Pacific Ocean areas which
are under the jurisdiction of the U.S. government.
B. This Agreement applies to and covers only
those employees of the Employer employed as iron-
workers, ironworker apprentices and machine oper-
ators and shall exclude office and clerical employ-
ees, watchmen and/or guards, professional employ-
ees and supervisors and all other employees not em-
ployed on work coming within the scope of this
Agreement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The jurisdiction of the contract is further spelled out
in article 3 of the agreement. Union-security provisions
are set forth in article 4 of the contract, and hiring hall
referral provisions are contained in article 5 of General
Counsel's Exhibit 6. The contract does not contain any
provision which limits the contract's applicability to any
specific construction project.
Morikawa said that eight contractors make up the
Steel Fabricators and Erectors of Hawaii, and he esti-
mated that from 50 to 75 other employers have signed a
"Signatory Addendum" to General Counsel's Exhibit 6.
E. The Respondent's Employees as of December 10,
1977
As indicated in the previous section herein, the Re-
spondent and the Union entered into their fourth con-
tract on December 10, 1977. The bargaining unit in-
volved in that agreement has also been described in sec-
tion 8 herein.
One of the questions presented in this case is whether
the Union, in fact, represented a majority of the Re-
spondent's employees in the unit described in General
Counsel's Exhibit 6, when the Respondent entered into
that contract with the Union. In order to determine
whether that question should be answered in the affirma-
tive or in the negative, it has been necessary to examine
the substantial amount of documentary evidence intro-
duced at the hearing, as well as to consider the wit-
nesses, testimony regarding those matters. The docu-
ments cover a much broader period of time, both before
and after December 10, 1977. Some of the documentary
evidence also encompasses employees beyond the scope
of the unit defined in General Counsel's Exhibit 6.
While all of the documents have been considered, the
initial inquiry in this section has been focused on the
status of the Respondent's employees in the unit de-
scribed in General Counsel's Exhibit 6 as of December
10, 1977.
It was admitted by Kerr that for the period of time
from October 1976 to February 28, 1979, the persons
whose names are listed on General Counsel's Exhibit 11
constituted a majority of the employees utilized by the
Respondent to perform the ironwork defined in General
Counsel's Exhibit 6. The timespan covered by that ad-
mission by the Respondent includes, of course, Decem-
ber 10, 1977.
General Counsel's Exhibit 11 is a compilation of cer-
tain information taken from the Union's records. The
document shows the names of all persons who were dis-
patched by the Union from its hiring hall to work for the
Respondent and the date of the first day of the person's
employment with the Respondent. Morikawa explained
at the hearing that persons, who were referred to work
for the Respondent by the Union, were dispatched to
one project, but those persons also worked on other pro-
jects for the Respondent. The period of time covered by
Generel Counsel's Exhibit 11 is from October 5, 1976,
through January 15, 1979. General Counsel's Exhibit 11
shows a total of 92 dispatches by the Union of persons to
work for the Respondent.
A total of 10 such persons out of the 92 dispatches
were identified as being persons who were not members
of Local 625 at the time that the Union referred them to
work for the Respondent. Those 10 nonmembers of the
Local Union were all dispatched by the Union after De-
cember 10, 1977. In fact, the first such nonmember was
dispatched on January 10, 1978, and the last such non-
member was dispatched by the Union on January 15,
1979.
The parties stipulated that the following individuals
were not members of Local 628 at the time they were
referred by the Union: Greg Schubert, 1-10-78; Donald
Ford, 1-11-78; Loren Horlock, 1-19-78; Patrick Jen-
nings, 1-19-78; Dallas Hemo, 1-24-78; Lincoln Naiwi,
1-15-79. In addition, Morikawa identified four other per-
sons who similarly were not members of the Union at
the time of their referral. They are: Wayne Rayman, 6-
2-78; Anthony Akau, 6-2-78; Russel Kim, 6-3-78;
Melvin Kaehu, 6-2-78.
In addition to the foregoing, Kerr said that both he
and his son performed ironwork for the Respondent
during 1976. His son, Michael Kerr, is a first lieutenant
in the United States Army. At the time of the hearing,
Lieutenant Kerr was stationed in Germany. However,
when he was on leave from military service, he had as-
sisted his father.
Kerr also identified two other persons who performed
ironwork for the Respondent during 1977. Those persons
were his brother, Dale Kerr, who is an operating engi-
neer, but who did some ironwork, and Charles Coombs,
who is a superintendent of the Respondent.
Kerr also identified four persons who performed iron-
work during 1978 for the Respondent and who had not
been referred by the Union. They are: Kerr's stepson,
Jerry Miller; Charles Coombs, the superintendent; Ra-
phael Kim; and Brad Proctor.
By examining the information contained in Respond-
ent's Exhibit 3, General Counsel's Exhibit I 11, and Gener-
al Counsel's Exhibit 15, a determination can be made as
to which persons were employed by the Respondent on
December 10, 1977, in the unit described in General
Counsel's Exhibit 6.
First of all, Respondent's Exhibit 3 discloses that the
total number of employees who were employed by the
Respondent at any time during the year 1977 was 25. Of
course, Duane Kerr is excluded from the computations
to be made herein, although his name does appear on Re-
spondent's Exhibit 3, because Kerr is the president of the
Respondent. Of those 25 persons who worked at various
times for the Respondent in the year 1977, 13 of those
persons were employed by the Respondent in December
1977. Of those 13 employees who worked at times
during December 1977 for the Respondent, 10 of those
persons had been dispatched by the Union to work for
the Respondent. Those individuals are identified on Re-
spondent's Exhibit 3 by the asterisk which is placed by
their names. None of those 10 persons are among those
who have been previously identified herein as non-
members of the Union.
General Counsel's Exhibit 15 names the 10 persons
employed by Respondent on December 10, 1977, and
who had been referred by the Union to work for Re-
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CONSTRUCTION ERECTORS, INC.
spondent; the periods worked in 1977; and the total
hours in each period.
With regard to the three employees of the Respondent
who worked during the month of December 1977, but
who were not referred by the Union to work for the Re-
spondent, Respondent's Exhibit 3 revealed that Dale
Kerr had worked all 12 months of 1977 for the Respond-
ent. Another employee, G. Jaggs, had worked in all but
2 months during 1977 for the Respondent. The 2 months
in which Jaggs did not work were March and June 1977.
The third employee, P. Stobaugh, worked for the Re-
spondent only during the month of December 1977.
After considering the foregoing, I find that on Decem-
ber 10, 1977, that 10 out of 13 employees of the Re-
spondent were members of the Union. As stated previ-
ously, none of those 10 persons were among those indi-
viduals who were identified as nonmembers of the
Union. Accordingly, I further find that the Union repre-
sented a majority of the Respondent's employees at the
time that the Respondent and the Union entered into
their fourth contract.
As indicated previously, there is a substantial amount
of documentary evidence in the record which goes
beyond the matters discussed above. For example, Re-
spondent's Exhibit 4 and Respondent's Exhibit 5 provide
information similar to that contained in Respondent's Ex-
hibit 3, but those exhibits cover the years 1978 and 1979,
respectively. Similarly, General Counsel's Exhibit 14,
General Counsel's Exhibit 16, and General Counsel's Ex-
hibit 17 contain information similar to that which is de-
scribed above regarding General Counsel's Exhibit 15,
but those documents cover the years 1976, 1978, and
1979. However, in view of the findings above, it is un-
necessary to set forth the facts revealed by those exhibits
or the remaining documents which were introduced.
F. Changes in the Respondent's Business Operations
In December 1977 the Respondent accepted its first
general contract, which was in the amount of $105,000.
Previously, the Respondent had basically been a steel
subcontractor. The type of work performed was primar-
ily the subcontracting of steelwork, metal buildings,
some stairways, and other unrelated work. As a steel
subcontractor, the Respondent furnished labor and equip-
ment, where as a general contractor, the Respondent also
furnished materials, which increased the doller volume of
the amount of the contract.
As a general contractor, Kerr said that his employees
lay the foundation, put up the steel, and put on the roof.
Kerr said that he subcontracts the electrical work and
the plumbing work. Sometimes he also subcontracts part
of the excavation work. Kerr stated that instead of iron-
workers, he hired "people that are skilled in all different
facets of general building work." He said that his em-
ployees worked under the supervision of two supervisors
who are not craft supervisors, and that his employees
worked together on different projects with the same
working conditions and benefits. Kerr described a pro-
ject where he had successfully completed the construc-
tion of a 21,300 square foot warehouse in just 6 weeks.
He said that he did so without the use of union iron-
workers. Except for the concrete portion of the project,
where ironworkers were not needed, the work on the
project took place after February 28, 1979, when the Re-
spondent had withdrawn recognition from the Union.
Introduced into evidence as Respondent's Exhibit 2
was a document showing the percentage of revenues
which were derived by the Respondent as a general con-
tractor; as a steel erection subcontractor, and as a sub-
contractor for other work. The document discloses that
in 1977, the Respondent received 55.7 percent of its rev-
enues as a general contractor. During that same year, the
Respondent received 27.3 percent of its revenues as a
steel erection subcontractor and 17 percent of its rev-
enues as a subcontractor for other work. Kerr testified
that the majority of the work performed by the Re-
spondent in 1977 would have been work as a steel erec-
tion subcontractor, but for the $105,000 general contract
which the Respondent received in December 1977.
For the year 1978, the Respondent received 55.2 per-
cent of its revenues as a general contractor; 37 percent of
its revenues as a steel erection subcontractor, and 7.8
percent of its revenues as a subcontractor for other
work.
In the year 1979, the Respondent received 94.8 percent
of its revenues as a general contractor; 3.2 percent of its
revenues as a steel erection subcontractor, and 2 percent
of its revenues as a subcontractor for other work.
G. The Strike by the Respondent's Employees
Six ironworkers were employed by the Respondent in
November 1978, and all of those six employees went out
on strike. The Union's strike against the Respondent
lasted until January 15, 1979.
Morikawa stated that the reason for the strike was that
the Respondent was delinquent in its payments to the
various trust funds.
H. The Respondent's Letter Dated February 28. 1979
A copy of a letter dated February 28, 1979, from the
Respondent to the Union was introduced into evidence
as General Counsel's Exhibit 8. In pertinent part, it
states:
The Agreement to which we are a Signatory states
as follows:
It is the objective of the Parties that the obligation
of the Employer for successful prosecution of its
business and fulfillment of its responsibilities to the
employees covered by this Agreement be carried on
without interference arising from differences be-
tween the Parties.
It is, therefore, the intent of the Parties hereto to set
forth herein their Agreement with respect to rates
of pay, hours of work, and conditions of employ-
ment to be observed by the employer, the union,
and the employee covered by this Agreement; to
provide procedures for equitable adjustment of
grievances; to prevent lockouts, interruptions of
work, work stoppages, strikes, or other interfer-
ences with the work of the employer during the life
of this Agreement; to promote harmonious relations
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the employer, its employees, and the union;
and to contribute toward the stabilizing and
strengthening of the Construction Industry.
Now, whereas, Local Union No. 625 has showed
interference arising from differences between the
Parties to result in no shows; interruptions of work;
work stoppages; harassment of employees and ha-
rassment of employers clients.
And, whereas, the employer no longer employs any
members of Local Union No. 625.
It is therefor considered that no Agreement exists
between Local Union No. 625 and Construction
Erectors, Inc., and you are hereby notified that the
Agreement is terminated this date.
According to Morikawa, he had received no com-
plaints prior to February 28, 1979, from the Respondent
with regard to "no-shows" or work stoppages. Mor-
ikawa said that he was the Union's business agent at that
time, and that he was in frequent contact with the Re-
spondent. Morikawa had checked on compliance with
the contract by the Respondent, and Morikawa said that
the Respondent had complied with the contract's terms,
including the union-security clause of the contract. No
indication was given to Morikawa prior to February 28,
1979, that the Respondent was going to terminate the
contract.
On February 28, 1979, the Respondent did not have
any ironworkers on its payroll, who had been referred to
the Respondent by the Union, nor has the Respondent
had any such persons since that time.
I. The Union's Reply by Letter Dated March 5, 1979
The Union made a reply to the Respondent's letter of
February 28, 1979. A copy of the Union's reply by letter
dated March 5, 1979, from the Union to the Respondent
was introduced into evidence as General Counsel's Ex-
hibit 9. In pertinent part, it stated:
I just received your letter and in answer to this, I
must say that Union Local 625 has always kept
good faith with its Employers, providing that the
agreements has been lived up to. We in the past
have given you good qualified honest men and in
return you have not lived up to the agreements that
you signed with Union Local 625.
By this I mean, you have not made the contribu-
tions that is spelled out in the contract, if you had
done this there would have be no problem between
this local union and your company.
The Ironworkers are out there to do a good job and
in return for their work, they expect their Employ-
ers no matter who they might be, to fulfill their ob-
ligations according to the agreement. If this had
been done, our relationship would still be beautiful,
but as it stands now, I truly believe that you have
brought this situation upon yourself. Do not blame
the Union for what is happening.
In your letter you wrote a portion of the agree-
ment, you should also read page 12 to 14, Article 11
and page 17 to 18, Article 18, paragraph E.
I must say at this time that the agreements by and
between Construction Erectors and the Internation-
al Association of Bridge, Structural and Ornamental
Iron Workers Local Union 625 are still in effect. I
must also say that if you should pick up future
work and the call for men as needed are not made,
we will take other measures to correct the situation.
If you should have any further questions, please feel
free to call our office at 836-1855.
J. The Respondent's Letter Dated March 7. 1979
The Respondent replied to the Union's letter referred
to in the previous section. A copy of the letter dated
March 7, 1979, from the Respondent to the Union was
introduced into evidence as General Counsel's Exhibit
10. In pertinent part, it states:
We are in receipt of your letter of March 5, 1979.
Regardless of any other circumstances, in accord-
ance with Article 1 of the Agreement, we are free
to terminate the Agreement at any time, upon writ-
ten Notice, provided that Notice is given sixty (60)
calendar days prior to the expiration date of the
Agreement, which at present is September 1, 1980.
Therefore, since you have acknowledged receipt of
our letter on or before March 5, 1979, we consider
that Agreement terminated as of that date.
The Representation Proceedings
Introduced into evidence as Respondent's Exhibit 7
was a copy of a representation petition filed on August
28, 1979, by the Respondent in Case 37-RM-116.
The Respondent's representation petition sought an
election in the following unit: "All employees of the em-
ployer excluding office clerical employees, guards, super-
visors, ironworkers, and managerial employees as defined
in the Act." The petition averred that the Respondent
had been picketed by or on behalf of the Carpenters &
Joiners of America Local 745 since January 30, 1979.
The Respondent introduced a copy of the eligibility
list of employees for the representation election as Re-
spondent's Exhibit 8. That document contains the names
of all of the Respondent's employees who were em-
ployed during the payroll period ending August 31,
1979, except for the names of the Respondent's office
clerical employees.
A copy of the tally of ballots for the election held on
September 11, 1979, was introduced into evidence as Re-
spondent's Exhibit 9. The tally of ballots reveals that the
election was conducted under the provisions of Section
8(b)(7) of the Act. The tally further reveals that no votes
were cast for Carpenters & Joiners of America, Local
745, and that 13 votes were cast against that participating
labor organization.
A copy of the Certification of Results of Election in
Case 37-RM-116 was introduced into evidence as Re-
324
CONSTRUCTION ERECTORS, INC.
spondent's Exhibit 10. The Certification of Results is
dated September 20, 1979.
Conclusions
The Board held in its decision in Precision Striping,
Inc., 245 NLRB No. 34 (1979), as follows:
Respondent and the Union had entered into their
original bargaining relationship pursuant to Section
8(f) of the Act, which permits an employer, such as
Respondent, engaged primarily in the construction
industry, to make a "pre-hire" agreement with a
union covering employees engaged in that industry
before the union has attained majority status.
Respondent contends that it was justified in refus-
ing to honor its contract with the Union in mid-
term, because such an 8(f) agreement is not enforce-
able under the Supreme Court's decision in
N.L.R.B. v. Local Union No. 103, International Asso-
ciation of Bridge, Structural & Ornamental Iron
Workers. AFL-CIO [Higdon Contracting Co.].4
However, the Court there noted that it was "undis-
puted that when the union successfully seeks major-
ity support, the prehire agreement attains the status
of a collective-bargaining agreement executed by
the employer with a union representing a majority
of the employees in the unit."5 Consistent with this
principle, the Board has decided that, where a
union, originally recognized under Section 8(f), sub-
sequently achieves status among employees who
make up a permanent, stable work force," or among
employees employed at a particular jobsite, "the
employer is then under the statutory duty to recog-
nize and bargain with the union as the employees'
exclusive representative." 8 Further, where there is a
collective-bargaining agreement in effect between
an employer and a union which is the statutory bar-
gaining agent for the employees covered by the
contract, that union enjoys an irrebuttable presump-
tion of majority status for the duration of the agree-
ment. 9
4 434 U.S. 335 (1978).
' Id. at 350.
s Cf. Dee Cee Floor Covering Inc., 232 NLRB 421 (1977),
Chairman Fanning dissenting in part, where the Board distin-
guished situations in which a construction industry employer main-
tains "a regular complement of employees," from those in which
the employer hires on a project-by-project basis.
' See, e.g., Davis Industries Inc., 232 NLRB 946 (1977).
Id. at 952.
s Hexton Furniture Company. I 1 NLRB 342 (1955).
In addition, the Board has indicated that the rationale
of Dee Cee Floor Covering, Inc., 232 NLRB 421 (1977), is
not applicable to a 9(a) bargaining relationship. See the
Board's decision in G. M. Masonry Co., 245 NLRB No.
54, fn. 1 (1979).
In remarking on stability in industrial relations, the
Board has commented in its decision in United Supermar-
kets, Inc., 214 NLRB 958 (1974), "we have repeatedly
emphasized that stabilization in industrial relations is the
ultimate objective of all provisions in the Act."
With the foregoing guidance from the Board in mind,
I conclude that the fourth contract, which was agreed to
by the Respondent and the Union, was not a prehire col-
lective-bargaining agreement within the meaning of Sec-
tion 8(f) of the Act. The first contract between the Re-
spondent and the Union fell into the category of an 8(f)
agreement. (See section A., herein.) However, at least by
the time of the execution of the fourth contract between
the Respondent and the Union, the Union had achieved
majority status in a stable unit of the Respondent's em-
ployees. (See sec. E, herein.) Accordingly, I conclude
that Section 9(a) of the Act applied on and after Decem-
ber 10, 1977, to the bargaining relationship between the
Respondent and the Union, rather than the provisions of
Section 8(f) of the Act. Precision Striping, supra.
Under the circumstances presented herein, 1 further
conclude that the Respondent was not free to question
the Union's majority status during the life of the fourth
contract, nor was the Respondent free to unilaterally ter-
minate that contract and withdraw recognition from the
Union. As indicated above, the provisions of Section 9(a)
of the Act were applicable to the fourth contract.
I also conclude that the Respondent's action in decid-
ing to abrogate its contract with the Union was not justi-
fied by the Respondent's decision to expand its business
operations to become a general contractor, or by the Re-
spondent's desire to employ individuals with many skills.
(See sec. F, herein.) In addition, I further conclude that
the reasons asserted by the Respondent in its letter dated
February 28, 1979, did not justify the Respondent's ac-
tions. (See sec. H, herein.) On a factual basis, the reasons
cited in the letter are not supported by the evidence even
assuming, arguendo, that the reasons given in the letter
would afford the Respondent a legal basis for terminat-
ing its contract with the Union. In this connection, note
the testimony given by Morikawa.
Considering the testimony of both Kerr and Mor-
ikawa, it cannot be fairly said that Kerr was faced with
any threat of physical harm, duress, or coercion from the
Union at the time Kerr signed the Respondent's fourth
contract with the Union.
I have considered the matters offered by the Respond-
ent regarding the representation proceedings. (See the
section entitled "The Representation Proceedings"
herein.) However, I am not persuaded as to the applica-
bility of those matters to the issues presented in this case.
The unit involved in this case pertains to "ironworkers,
ironworker apprentices and machine operators." The
unit involved in Case 37-RM-116 specifically excluded
ironworkers. Thus, the two units are different bargaining
units.
In addition, the representation proceedings did not in-
volve the Union which is the Charging Party in this
case. Instead, the representation proceedings involved
another labor organization; namely, Carpenters & Joiners
of America, Local 745.
The representation proceedings were not initiated until
6 months after the Respondent had already withdrawn
recognition from the Union involved in this case. Note
that the Respondent withdrew recognition from the
Union by its letter dated February 28, 1979, and that the
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition involving the Carpenters & Joiners of America,
Local 745, was not filed until August 28, 1979. After
considering the foregoing, I conclude that the represen-
tation proceedings are not genuinely applicable to the
issues in this case.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 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 following employees of the Respondent consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All employees of the Respondent employed as
ironworkers, ironworker apprentices and machine
operators; excluding office and clerical employees,
watchmen and/or guards, professional employees
and supervisors as defined in the Act.
4. At all times material herein since on and after De-
cember 10, 1977, the Union has been the exclusive repre-
sentative of all of the employees in the above-described
unit for the purposes of collective bargaining.
5. By failing and refusing since on or about February
28, 1979, to bargain collectively with the Union with re-
spect to the rates of pay, wages, hours of employment,
and other terms and conditions of employment of the
employees in the above-described unit; by repudiating
the collective-bargaining agreement executed by the Re-
spondent and the Union on December 10, 1977, and by
withdrawing recognition from the Union as the collec-
tive-bargaining representative of the employees in the
above-described unit, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(aX1) and (5) of the Act.
6. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Since I have found that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(aXl) and (5) of the Act, I shall recommend to the
Board that the Respondent be ordered to cease and
desist from engaging in those unfair labor practices.
I shall also recommend to the Board that the Respond-
ent take certain affirmative action in order to effectuate
the policies of the Act. Such affirmative action will in-
clude the payment of backpay to unit employees who
have lost wages since February 28, 1979, as a result of
the Respondent's unfair labor practices. (See Don Burgess
Construction Corporation d/b/a Burgess Construction and
Donald Burgess and Verlon Hendrix d/b/a V & B Build-
ers, 227 NLRB 765 (1977). Backpay and interest on such
backpay amounts will be computed in accordance with
the Board's decisions in F. W Woolworth Company, 90
NLRB 289 (1950); Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
The General Counsel's request that the interest rate be
fixed at a 9-percent annual rate is hereby denied. See
Hansen Cakes, Inc., 242 NLRB 472 (1979); Southern Cali-
fornia Edison Company, 243 NLRB 372 (1979); Neely's
Car Clinic, 242 NLRB 335 (1979); and W Carter Max-
well, d/b/a Pioneer Concrete Co., 241 NLRB 264 (1979).
Such affirmative action to remedy the Respondent's
unfair labor practices will also include the payment to
the trust funds for the fringe benefits of employees in ac-
cordance with the terms of the collective-bargaining
agreement between the Respondent and the Union,
which was signed on December 10, 1977. However, in
accordance with the Board's decisions, I shall not pro-
vide for interest to be added to such payments. Fitzpa-
trick Electric, Inc., 242 NLRB 739 (1979); Nelson Electric,
Gary C. Nelson, Inc., and Gary C. Nelson Electric, 241
NLRB 545 (1979); B. G. Costich & Sons, Inc., 243 NLRB
79 (1979), and Inland Cities, Inc., 241 NLRB 374 (1979).
Finally, I shall recommend to the Board a narrow
cease-and-desist order. Hickmott Foods Inc., 242 NLRB
1357 (1979); Supreme Bumpers, Inc., d/b/a Precision
Plating, 243 NLRB 230 (1979).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, Construction Erectors, Inc., Honolu-
lu, Hawaii, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with
the Union with respect to the rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment of the employees in the unit described below,
repudiating the collective-bargaining agreement executed
by the Respondent and the Union on December 10, 1977,
and withdrawing recognition from the Union as the col-
lective-bargaining representative of the employees in the
unit described below. The appropriate collective-bargain-
ing unit is:
All employees of the Respondent employed as
ironworkers, ironworker apprentices and machine
operators; excluding office and clerical employees,
watchmen and/or guards, professional employees
and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by the Act.
2. Take the following affirmative action which is
deemed necessary in order to effectuate the policies of
the Act:
I In the event that no exceptions are filed, as provided by Sec. 102.46
of the Board's Rules and Regulations, the findings, conclusions, and rec-
ommended Order herein shall, as provided in Sec. 102.48 of the Board's
Rules and Regulations, be adopted by the Board and become its findings,
conclusions, and Order and all objections thereto shall be deemed waived
for all purposes.
326
CONSTRUCTION ERECTORS. INC.
(a) Upon request, bargain collectively with the Union
as the exclusive collective-bargaining representative of
the employees in the bargaining unit previously de-
scribed and embody in a signed agreement any under-
standing which may be reached.
(b) Honor and abide by the terms of the existing col-
lective-bargaining agreement between the Respondent
and the Union, which was signed on December 10, 1977,
during the life of that contract.
(c) Reimburse those employees who have lost wages
since February 28, 1979, as a result of the Respondent's
repudiation of the collective-bargaining agreement and
the Respondent's failure to abide by the terms of its con-
tract with the Union. Appropriate interest is to be added
to such backpay amounts. See the section of this Deci-
sion entitled "The Remedy."
(d) Make appropriate payments to the funds estab-
lished by the terms of the contract, which Respondent
has failed to pay, in accordance with the terms and pro-
visions of the collective-bargaining agreement.
(e) Preserve and, upon request, make available to the
Board's agents for examination and copying, payroll re-
cords, social security records, timecards, personnel re-
cords, and all of the other records necessary to analyze
the amount of money due under the terms of this Order.
(f) Post at its Honolulu office and at all of its Hawaii
jobsites where its employees are working at the time the
Respondent commences compliance with the terms of
this Order, copies of the attached notice marked "Ap-
pendix." 2 The Regional Director of Region 20 of the
Board will provide copies of the notice to the Respond-
ent. After the Respondent's representative has signed
those copies, the Respondent shall post those notices im-
mediately after receiving them. The Respondent shall
maintain such notices for a period of 60 consecutive days
after they have been posted in conspicuous places, in-
cluding all of the places where the Respondent custom-
arily posts notices to its employees. The Respondent
shall also take reasonable steps to insure that said notices
are not altered, defaced, or covered by any other materi-
al during the posting period.
(g) Within 20 days from the date of this Order, the Re-
spondent shall write a letter to the Regional Director of
Region 20 of the Board and tell her what the Respond-
ent has done to comply with this Order.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading, "Posted by
Order of the National Labor Relations Board" shall read "Posted Punrsu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
327