Seedorf Masonry, Inc.

National Labor Relations Board - Board Decisions

May 7, 2014

360 N.L.R.B. 869 (N.L.R.B. 2014)

SEEDORFF MASONRY, INC. 869
360 NLRB No. 107
Seedorff Masonry, Inc. and International Union of
Operating Engineers, Local 150, AFL–CIO.
Case 25–CA–088910
May 12, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On November 19, 2013, Administrative Law Judge
Melissa M. Olivero issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions, to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In addition, we agree with the judge that the Respondent violated
Sec. 8(a)(5) and (1) by refusing to abide by the terms of the 2010–2014
collective-bargaining agreement between the Quad Cities Builders
Association, Inc. (the Association) and the Union. The Respondent is
bound to that agreement by virtue of its signing the 1988 individual
building agreement. See Twin City Garage Door Co., 297 NLRB 119,
119 fn. 2 (1989). In the 1988 individual building agreement, the Re-
spondent expressly gave continuing consent to the Association to bind
it to successive collective-bargaining agreements, and it never revoked
that authorization.
We also agree with the judge that the Respondent failed to carry its
burden to prove, as an affirmative defense, that the bargaining unit was
a stable one person unit. The judge properly drew an adverse inference
against the Respondent for its failure to produce any evidence, particu-
larly its payroll records, which the Respondent’s president testified that
he reviewed in reaching his conclusion that the Respondent has not
employed more than one operator at a time. See Galesburg Construc-
tion, 267 NLRB 551, 552 (1983) (approving the judge’s adverse infer-
ence from employer's failure to produce documents in its control).
Member Miscimarra agrees with his colleagues that the Respondent
failed to prove a stable one person unit, but he finds it unnecessary to
draw an adverse inference from the Respondent’s failure to introduce
its payroll records into evidence. In support of its defense, the Re-
spondent relies on its president’s testimony, which at most establishes
that the Respondent consistently employed no more than one member
of Operators Local 150 to perform unit work. Although this testimony
suggests that the Respondent consistently employed only one Local 150
member in the performance of bargaining unit work, the evidence sug-
gests that additional individuals (nonmembers of Local 150) performed
the same work. If two or more employees perform bargaining unit
work, the situation is not converted into a “one-person unit” if the em-
ployer arranges for nonunit employees, with a single exception, to
perform the work in question.
amend the remedy,2 and to adopt the recommended Or-
der as modified and set forth in full below.3
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act.
We shall require the Respondent to honor and comply
with the terms and conditions of the 2010–2014 collec-
tive-bargaining agreement between the Quad Cities
Builders Association and the Union. We shall also re-
quire the Respondent to make whole the unit employees
for any loss of earnings and other benefits suffered as a
result of the Respondent’s unlawful repudiation of the
collective-bargaining agreement with the Union. The
make-whole remedy shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
We shall further require the Respondent to make all
contractually required contributions to the Union’s fringe
benefit funds that it has failed to make since April 12,
2012, including any additional amounts due the funds in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). Moreover, we shall require the
Respondent to reimburse the unit employees for any ex-
penses resulting from its failure to make the required
contributions, as set forth in Kraft Plumbing & Heating,
252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981). Such amounts are to be computed in
the manner set forth in Ogle Protection Service, supra,
with interest as prescribed in New Horizons, supra, com-

2 Although the judge’s recommended Order and notice include lan-
guage requiring the Respondent to reimburse the unit employees for
any expenses resulting from its failure to make the contractually re-
quired payments to the Union’s fringe benefits funds, the judge inad-
vertently failed to state this in the remedy section of her decision. We
shall amend the remedy accordingly. We shall also amend the judge’s
remedy to require payment of any additional amounts due to benefits
funds in accordance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979), and to provide that all monetary awards be computed
in accordance with applicable case law.
3 We shall delete the judge’s reference to the Union’s status as the
“limited” collective-bargaining representative of the unit employees in
her recommended Order and notice. See Trade Show Supply, 359
NLRB 997, 999 fn. 3 (2013) (During the term of a collective-
bargaining agreement established under Sec. 8(f), the union is the em-
ployees’ exclusive collective-bargaining representative, plain and sim-
ple. Referring to its representational status as limited is erroneous.).
We shall conform the Order to our standard remedial language. We
shall substitute a new notice to conform to the Order as modified and in
accordance with our decision in Durham School Services, 360 NLRB
694 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD870
pounded daily as prescribed in Kentucky River Medical
Center, supra.
Finally, we shall require the Respondent to compen-
sate the unit employees for any adverse income tax con-
sequences of receiving their backpay in one lump sum
and file a report with the Social Security Administration
allocating the backpay to the appropriate calendar quar-
ters for each employee.
ORDER
The National Labor Relations Board orders that the
Respondent, Seedorff Masonry, Inc., Strawberry Point,
Iowa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, International Union of Operating Engineers,
Local 150, AFL–CIO, as the collective-bargaining repre-
sentative of all employees performing work as set forth
in articles 1 and 11 of the 2010–2014 collective-
bargaining agreement between the Quad Cities Builders
Association, Inc. (the Association) and the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Honor and comply with the terms and conditions
of the 2010–2014 collective-bargaining agreement be-
tween the Association and the Union and, absent timely
written notice to the Union, any automatic renewal or
extension of it.
(b) Make whole all affected bargaining unit employ-
ees for any loss of earnings and other benefits suffered as
a result of the Respondent’s failure to honor the collec-
tive-bargaining agreement, in the manner prescribed in
the amended remedy section of this decision.
(c) Make all contractually required contributions to
the Union’s fringe benefit funds that the Respondent has
failed to make since April 12, 2012, and reimburse the
unit employees, with interest, for any expenses resulting
from its failure to make the required payments under the
collective-bargaining agreement, in the manner pre-
scribed in the amended remedy section of this decision.
(d) Compensate the unit employees for any adverse
income tax consequences of receiving a lump-sum back-
pay award, and file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters for each employee.
(e) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Strawberry Point, Iowa facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since April 12, 2012.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SEEDORFF MASONRY, INC. 871
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to bargain in good faith
with the Union, International Union of Operating Engi-
neers, Local 150, AFL–CIO, as the exclusive collective-
bargaining representative of all employees performing
work as set forth in articles 1 and 11 of the 2010–2014
collective-bargaining agreement between the Quad Cities
Builders Association, Inc. (the Association) and the Un-
ion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL honor and comply with the terms and condi-
tions of the 2010–2014 collective-bargaining agreement
between the Association and the Union, and, absent time-
ly written notice to the Union, any automatic renewal or
extension of it.
WE WILL make whole all bargaining unit employees
for any loss of earnings and other benefits they may have
suffered as a result of our failure to honor the collective-
bargaining agreement.
WE WILL make all contractually required contributions
to the Union’s fringe benefit funds that we have failed to
make since April 12, 2012, and reimburse our employ-
ees, with interest, for any expenses resulting from our
failure to make the required payments under the collec-
tive-bargaining agreement.
WE WILL compensate all unit employees adversely af-
fected for any adverse income tax consequences of re-
ceiving a lump-sum backpay award, and WE WILL file a
report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters
for each employee.
SEEDORFF MASONRY, INC.
The Board’s decision can be found at
www.nlrb.gov/case/25-CA-088910 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
Raifael Williams, Esq., for the General Counsel.
Kelly R. Baier, Esq., for the Respondent.
Steven A. Davidson, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case
was tried in Peoria, Illinois, on July 11, 2013. Charging Party
International Union of Operating Engineers Local 150, AFL–
CIO, filed the charge on September 7, 2012,1 and the Acting
General Counsel2 issued the complaint on November 30. The
complaint alleges that Seedorff Masonry, Inc. (Respondent)
violated Section 8(a)(5) and (1) of the Act by refusing to adhere
to a collective-bargaining agreement with the Union.3 (GC
Exh. 1(d).) Respondent timely filed an answer to the complaint
denying the alleged violation of the Act and asserting nine af-
firmative defenses. (GC Exh. 1(f).) The parties were given full
opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. On
the entire record, including my own observation of the de-
meanor of the witnesses,4 and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is a masonry contractor engaged
in the construction industry at its facility in Strawberry Point,
Iowa, where it annually performs services valued in excess of
$50,000 in states other than the State of Iowa. Respondent
admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Furthermore, Respondent admits and I find that at all material
times the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act. (GC Exh. 1(f).)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operations and
Management Structure
Respondent is a masonry contractor with its headquarters in
Strawberry Point, Iowa, and offices in Omaha, Nebraska, and
Des Moines and Eldridge, Iowa. Respondent performs mostly
commercial masonry work, installing brick, block, stone, and
cast stone. Most of this work is performed in the Midwest,
including in the States of Nebraska, Iowa, Illinois, Missouri,
and Kansas.

1 All dates are in 2012 unless otherwise indicated.
2 For purposes of brevity, the Acting General Counsel is referenced
as General Counsel.
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s Exhibit; “GC Exh.” for General
Counsel’s Exhibit; “CP Exh.” for Charging Party’s Exhibit; “R. Br.”
for Respondent’s Brief; “GC Br.” for the General Counsel’s Brief; and
“CP Br.” for Charging Party’s Brief.
4 Although I have included citations to the record to highlight par-
ticular testimony or exhibits, I emphasize that my findings and conclu-
sions are not based solely on those specific record citations, but rather
on my review and consideration of the entire record for this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD872
Robert Marsh has been Respondent’s president since 2010
and previously served as Respondent’s vice president. Prior to
Marsh becoming Respondent’s president, Mark Guetzko was
Respondent’s president for about 15 years. Mark Rima served
as Respondent’s vice president and controller for 10 to 15
years, but is no longer employed by Respondent. Respondent
admits, and I find, that Marsh, Guetzko, and Rima are supervi-
sors of Respondent within the meaning of Section 2(11) of the
Act and agents of Respondent within the meaning of Section
2(13) of the Act. (GC Exh. 1(f).)
B. Respondent’s Collective-Bargaining Agreements
On July 19, 1988, Respondent entered into an individual
building agreement, becoming signatory to an agreement be-
tween the Quad Cities Builders Association, Inc. (QCBA), and
the International Union of Operating Engineers Local Union
No. 537. (GC Exh. 2.) Local 537 merged with Charging Party
International Union of Operating Engineers Local 150, AFL–
CIO (Union or Local 150), in the early 1990s. (Tr. 18, 24.)
The individual building agreement signed by Respondent in
1988 states:
The undersigned employer signatory hereto who is not a
member of the said Association [QCBA] agrees to be bound
by any amendments, extensions or changes in this Agreement
agreed to by the Union and the [QCBA], and further agrees to
be bound by the terms and conditions of any subsequent con-
tracts negotiated between the Union and the [QCBA] unless
ninety (90) days prior to the expiration of this or any subse-
quent agreement said non-member employer notifies the Un-
ion in writing that it revokes such authorization.
[Emphasis added.] (GC Exh. 2.) Respondent has never sent
written notice to the Union terminating the collective-
bargaining agreement or revoking the authority of the QCBA to
negotiate subsequent agreements. (Tr. 18.) The individual
building agreement further provides that notice by the Union
upon the QCBA of its intent to reopen, terminate, or commence
negotiations for a successor agreement shall constitute notice
upon the signatory employers. (GC Exh. 2.)
Between 1988 and the present time, the QCBA and Union
have negotiated 10 successive collective-bargaining agree-
ments. (Tr. 26.) The current collective-bargaining agreement,
effective from June 1, 2010, to May 31, 2014, is contained in
the record as General Counsel’s Exhibit 4. This agreement
states that it shall renew from year to year after its expiration,
unless one of the parties serves notice upon the other of its
intent to modify or terminate it. (GC Exh. 4, p. 53.)
The QCBA agreement recognizes the Union as the sole col-
lective-bargaining representative for signatory contractor em-
ployees engaged in the operation or maintenance of all hoisting
and portable machines and engines used on building and exca-
vating work, or any other power machine that may be used for
the construction, alteration, repair, or wrecking of a building or
buildings within the Union’s territorial jurisdiction.5 (GC Exh.

5 The Union’s territorial jurisdiction is defined as Rock Island and
Mercer Counties, and portions of Henry and Whiteside Counties in
4, art. 1.) The contract requires signatory contractors to obtain
employees through Local 150’s hiring hall. (GC Exh. 4, art. 3.)
Furthermore, the contract forbids signatory contractors from
subcontracting or subleasing the covered work of the Union.6
(GC Exh. 4, art. 1, sec. 1.1.)
In 2006 the Union sent a letter to the QCBA indicating that
the Union would like to meet with the QCBA to begin negotiat-
ing a new contract, as the then existing contract was about to
expire. (CP Exh. 2.) Respondent did not receive a copy of the
letter, as the signatory agreement signed by Respondent only
required notice of such intent to commence negotiations for a
new agreement to be made upon the QCBA. (GC Exh. 2.) The
QCBA responded to the Union’s letter agreeing to meet with
the Union under certain conditions.7 (R. Exh. 4; Tr. 20.)
Respondent is also party to a collective-bargaining agree-
ment with International Union of Operating Engineers Local
Union No. 234 (Local 234). (R. Exh. 6.) Locals 150 and 234
have a reciprocity agreement. (Tr. 39–40.) Local 234’s territo-
rial jurisdiction covers numerous counties in the State of Iowa,
outside of the territorial jurisdiction of Local 150. (R. Exh. 6,
art. XVII.) Respondent’s agreement with Local 234 applies to
work similar to that covered in its collective-bargaining agree-
ment with Local 150. (GC Exh. 4, art. 1; R. Exh. 6, art. 1.)
Respondent has also entered into a Project Labor Agreement
(PLA) with the Southeast Iowa Building and Construction
Trades Council for the construction of a penitentiary in Fort
Madison, Iowa. (R. Exh. 7.) The PLA, dated March 15, 2010,
applies only to work performed on the new penitentiary. (Id.)
C. Respondent’s Employment of a Union Operator
Respondent seasonally employs between 10 and 30 bricklay-
ers and between 10 and 30 laborers. (Tr. 79.) Marsh testified
that, based upon his review of Respondent’s payroll records,
Respondent has never employed more than one operator.8 (Tr.
79–80.)
Respondent has worked continuously in the Union’s jurisdic-
tion since 2006. (Tr. 79.) Respondent produced records at the
hearing that it employed J. H., a union operator, in 2009. J. H.
operated a boom truck on a school project in the Quad Cities
area, which is within the Union’s territorial jurisdiction. (Tr.

Illinois, and Cedar, Clinton, Des Moines, Lee, Louisa, Muscatine, and
Scott Counties in Iowa. (GC Exh. 2.)
6 On July 18, 1988, Respondent further executed a participation
agreement, binding it to Local 237’s Pension Fund agreement and
Welfare Fund agreement. (GC Exh. 3.)
7 Respondent received a copy of the QCBA’s letter and claims that
the letter established that the Union terminated the QCBA agreement in
2006. (R. Exh. 4; Tr. 20.) I do not find this to be the case. The letter
produced by the Union at hearing clearly shows that the Union was
seeking to commence negotiations for a new agreement (not terminate
the agreement) and its service upon the QCBA was proper under the
individual building agreement. (CP Exh. 2; GC Exh. 2.)
8 Respondent did not produce any documentary evidence, including
these payroll records, supporting Marsh’s assertion. Additionally,
Respondent offered only nonspecific evidence regarding the operation
of equipment covered by the QCBA agreement by persons other than
union members at the hearing. (R. Exhs. 1, 2, 9, 11.) I do not credit
Marsh’s testimony on this point for reasons discussed more fully be-
low.
SEEDORFF MASONRY, INC. 873
87.) Pursuant to its employment of J. H. within the Union’s
territorial jurisdiction, Respondent remitted dues and fringe
benefit payments to Local 150 for the months of July, August,
and September 2009. (GC Exh. 5.)
During the hearing and in its brief, Respondent attempted to
frame this dispute as a jurisdictional dispute.9 (Tr. 73, 92; R.
Br. p. 19–21.) Respondent argued that it assigned certain work
to members of Locals 309 and 538 of the Laborers’ Interna-
tional Union of North America (Laborers). (R. Exhs. 1, 9.)
Included in the work assigned by Respondent to the Laborers
Local 538 was:
the tending of masons . . . the starting, stopping, fueling, oil-
ing, cleaning, and operating and maintenance of all mixers,
mortar pumps and other devices under the direction of
Seedorff Masonry . . . This assignment specifically includes
the operation and maintenance associated with rough terrain
forklifts . . .
[Emphasis added.] (R. Exh. 9.) In a Board charge filed against
Laborers Local 538, Respondent included the operation of
grout pumps among the allegedly disputed work. (R. Exh. 12.)
Listed among the equipment to be operated by members of the
Union in the QCBA building agreement are forklifts and grout
pumps. (GC Exh. 4, pp. 16, 18.) Respondent also provided as
evidence a letter it sent to the Great Plains Laborers’ District
Council regarding the Union’s alleged attempts to claim work
assigned by Respondent to the Laborers.10 (R. Exh. 11.)
D. Grievances
The Union filed two grievances against Respondent in 2011.
(GC Exh. 7; Tr. 36.) One of these grievances concerned work
at the Fort Madison Penitentiary and was brought under the
PLA. (R. Exhs. 1, 2; Tr. 46; 53.) The other grievance was
brought under the QCBA agreement and concerned work at a
church in Burlington, Iowa (Burlington grievance).11 (GC
Exhs. 6, 7; Tr. 93, 100.) The Burlington grievance asserted that
Respondent failed to use a union member to operate a boom
truck at the church site, instead allowing the work to be per-
formed by a laborer. (Tr. 100). On October 10, 2011, Marsh
sent an email to Ryan Drew, a business agent of the Union,
indicating that Respondent had assigned operation of the boom
truck to the Laborers. (R. Exh. 1, p. 7.) Marsh did not claim
that Respondent was not signatory to the QCBA agreement in
this email. (R. Exh. 1, p. 7.)

9 On or about January 31, 2012, Respondent filed an 8(b)(4)(D)
charge against the Laborers in Region 14, alleging that the Union was
seeking the work assignment referenced infra and that the Laborers had
threatened a work stoppage. (R. Exh. 12.) This charge was dismissed
by the Regional Director in that he found no competing claims for the
same work. (R. Exh. 13.)
10 In July 2011, Respondent sent a letter to Laborers Local 309, pur-
porting to assign work similar to that assigned to Laborers Local 538,
to Local 309. (R. Exh. 1.) This work includes operation of forklifts,
mortar pumps, mixers, and other devices under the control of Respond-
ent. (Id.)
11 I take judicial notice that Burlington, Iowa, is the county seat of
Des Moines County in Iowa and thus is within the Union’s territorial
jurisdiction. (See the website of Des Moines County, Iowa,
www.dmcounty.com.)
On October 17, 2011, Marsh sent a letter to the Union ac-
knowledging receipt of the grievances. (R. Exh. 10.) Marsh
stated that Respondent was not available to attend a grievance
meeting at the Union’s office. (Id.) Marsh’s letter further indi-
cated that Respondent was not interested in settling the griev-
ances at that time. (Id.) Here again, Marsh did not mention
Respondent’s later position that it was not signatory to the
QCBA Agreement.
On November 3, 2011, Marsh sent a follow up email to
Drew regarding the grievances. (R. Exh. 2.) In his email
Marsh stated:
To my knowledge, Seedorff Masonry, Inc. is not signatory to
the current Local 150 [QCBA] Agreement and none of the
memoranda you sent to Mark Guetzko on September 9th ap-
pear to bind Seedorff Masonry to that agreement. If you disa-
gree, please identify the document(s) upon which you are re-
lying. We will need this information to be able to address
your grievances further.
(Id.) Drew responded to Marsh’s email within a few hours,
attaching copies of various documents supporting the Union’s
position that Respondent was indeed signatory to the QCBA
agreement. (Id.)
Thereafter, Respondent continued to process the Burlington
grievance. Specifically, Respondent proceeded through all of
the steps of the grievance-arbitration procedure contained in the
QCBA agreement, short of arbitration.12 (Tr. 53–55.) An arbi-
trator was appointed and he subsequently sought to schedule a
hearing date for both grievances. (CP Exh. 1; Tr. 53–55; 58.)
The parties agreed to schedule the arbitration hearing for the
Burlington grievance at the offices of the QCBA. (Tr. 63–64.)
Over 2 months later, on April 12, 2012, Respondent’s coun-
sel sent a letter to the Union addressing the Burlington griev-
ance. (GC Exh. 6.) This letter indicated that Respondent did
not believe that it had a current collective-bargaining agreement
with Local 150. (Id.) In the letter, Respondent’s counsel
claimed that Respondent had consistently, since 1988, informed
the Union that it had not assigned its bargaining rights to the
QCBA. Respondent’s counsel also claimed that the Union had
notified the QCBA in 2006 that it was terminating their collec-
tive-bargaining agreement and that no new agreement was
reached between Respondent and the Union. Therefore, Re-
spondent’s counsel stated, as no collective-bargaining relation-
ship existed, there was no basis for the Burlington grievance.
DISCUSSION AND ANALYSIS
A. Credibility Findings
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Double D Con-
struction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516

12 Drew’s testimony on this point stands uncontroverted and I credit
it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD874
(D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, 335 NLRB at 622.
In this case, credibility is generally not at issue because the
majority of the testimony that the witnesses provided was cor-
roborated by other evidence. Additionally, the witnesses’ tes-
timony did not generally conflict with that of other witnesses.
The findings of fact above incorporate the testimony of the
witnesses who testified at trial, to the extent that their testimony
was relevant, material, based on their personal knowledge, and
was corroborated by other evidence.
B. Respondent Violated the Act in Repudiating its Contract
with the Union
The QCBA agreement is an 8(f) agreement. Under Section
8(f) of the Act an employer who is primarily engaged in the
building and construction industry is permitted to enter into a
contract with a labor organization of which building and con-
struction employees are members, without regard to whether
the union’s majority status has been established. Coulter’s
Carpet Service, 338 NLRB 732, 733 (2002). Such agreements
are enforceable under Section 8(a)(5) of the Act. John Dekla-
wa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert.
denied 109 S.Ct. 222 (1988). Generally, a party may not law-
fully repudiate an 8(f) agreement during its term. Cedar Valley
Corp., 302 NLRB 823 (1991), enfd. 977 F.2d 1211 (8th Cir.
1992).
It is well settled that a construction industry employer may
become bound to successive 8(f) contracts, all enforceable un-
der Section 8(a)(5), if the employer has expressly given contin-
uing consent to a multiemployer association to bind it to future
contracts and that the employer has taken no timely or effective
action, consistent with its own agreement, to withdraw that
continuing consent from the association.13 Haas Electric, 334
NLRB 865, 866 fn. 7 (2001), enf. denied on other grounds 299
F.3d 23 (1st Cir. 2002); Luterbach Construction Co., 315
NLRB 976, 981 fn. 11 (1994), citing Kephart Plumbing, 285
NLRB 612 (1987), and Reliable Electric Co., 286 NLRB 834
(1987). In Kephart, a construction industry employer author-
ized an employer association to negotiate on its behalf and
execute a collective-bargaining agreement with a union. 285
NLRB at 612. The authorization continued unless the employ-
er took some action effectively withdrawing it. Id. The em-
ployer did not take any action, affirmative or negative, to divest
the association of bargaining authority before the union and
association negotiated and signed a successor collective-
bargaining agreement. Id. The Kephart Board found that the
employer was bound to the successor agreement, and that its
refusal to abide by it violated Section 8(a)(5) and (1). 285
NLRB at 613.
This is similar a case. The agreement executed by Respond-
ent in 1988 made it signatory to an 8(f) agreement. By way of

13 Withdrawal of negotiating authority from a multiemployer asso-
ciation is an action distinct from terminating a contract. Rome Electri-
cal Systems, 349 NLRB 745, 747 (2007), enfd. 286 Fed. Appx. 697
(11th Cir. 2008).
the 1988 individual building agreement (GC Exh. 2), Respond-
ent authorized the QCBA to bargain on its behalf with the Un-
ion. In addition, the QCBA remained Respondent’s agent for
purposes of binding it to the current agreement. The 1988 indi-
vidual building agreement required Respondent to provide writ-
ten notice to the Union, 90 days prior to the expiration of any
subsequent agreement, that it had revoked the authority of the
QCBA to negotiate subsequent agreements on its behalf. (GC
Exh. 2.) No evidence was presented by Respondent that it has
ever done so. As such, Respondent’s refusal to abide by the
terms of the current collective-bargaining agreement with the
Union violates the Act.
Despite Respondent’s arguments to the contrary, I cannot
find that the Union terminated its collective-bargaining agree-
ment by way of its 2006 letter to the QCBA. No evidence in
the record supports Respondent’s argument. The 2006 letter
from the Union to the QCBA indicated that the Union sought to
begin negotiations for a new agreement, not terminate the then-
effective agreement. Thus, Respondent’s argument in this re-
gard is without merit.
Under all of these circumstances I find that the General
Counsel has shown that the current QCBA agreement is valid
and enforceable, and that Respondent is obligated to abide by
the hiring hall and benefit provisions of the contract. I further
find that Respondent violated Section 8(a)(5) and (1) of the Act
by failing to abide by the terms of the agreement and by repu-
diating its collective-bargaining relationship with the Union, as
alleged.
C. Respondent’s 10(b) Defense
Respondent asserts that the charge filed by the Union was
time barred by Section 10(b) of the Act. (GC Exh. 1(f).) Sec-
tion 10(b) of the Act provides that “no complaint shall be based
upon any unfair labor practice occurring more than six months
prior to the filing of the charge with the Board.” 29 U.S.C. §
160(b). It is well settled that the 6-month limitations period
prescribed by Section 10(b) begins to run only when a party has
clear and unequivocal notice, either actual or constructive, of
the violation of the Act. Art’s Way Vessels, Inc., 355 NLRB
1142, 1147 (2010). Thus, a union must file its charge within 6
months of receiving clear and unequivocal notice of a contract
repudiation or a complaint based on the conduct will be time-
barred, even with regard to contract violations within the 10(b)
period. Vallow Floor Coverings, Inc., 335 NLRB 20 (2001).
The burden of showing such clear and unequivocal notice is
on the party raising the 10(b) defense. Broadway Volkswagen,
342 NLRB 1244, 1246 (2004). Where a delay in filing is a
consequence of conflicting signals or otherwise ambiguous
conduct by that party, a 10(b) defense will not be sustained. A
& L Underground, 302 NLRB 467, 469 (1991); Taylor Ware-
house, 314 NLRB 516, 526 (1994), enfd. 98 F.3d 892 (6th Cir.
1996).
Respondent’s position that there was a clear and unequivocal
repudiation of the collective-bargaining agreement contained in
Marsh’s October 17, 2011 letter and November 3, 2011 email is
not supported by the record evidence. (R. Br. p. 13.) Instead, I
find that the Union first received clear and unequivocal notice
SEEDORFF MASONRY, INC. 875
of Respondent’s total contract repudiation on April 12, 2012,
the date of the letter from Respondent’s counsel to the Union.
Nothing in Marsh’s letter of October 17, 2011, indicated that
Respondent was repudiating the QCBA agreement. Instead,
Marsh merely advised the Union that he was unavailable to
attend a grievance meeting and that Respondent was not
amendable to settling the grievance. Thus, Marsh’s letter did
not constitute a clear and unequivocal notice of contract repudi-
ation.
Furthermore, Marsh’s November 3, 2011 email message did
not serve as a clear and unequivocal notice of contract repudia-
tion. Marsh’s statement regarding Respondent’s status as a
signatory to the QCBA agreement is less than clear. Marsh
stated, “To my knowledge [Respondent] is not signatory to the
current Local 150 Quad City (sic) Agreement and none of the
memoranda that you sent . . . appear to bind [Respondent] to
that agreement. If you disagree, please identify the docu-
ment(s) upon which you are relying. We will need this infor-
mation to be able to address your grievances further.” (Em-
phasis added.) (R. Exh. 2.) Respondent’s use of qualifying
language such as “to my knowledge” and “if you disagree,”
make Marsh’s statement less than a clear and unequivocal no-
tice of a contract repudiation. Instead, it appears that Respond-
ent was open to receiving proof from the Union of Respond-
ent’s signatory status. The Union responded almost immediate-
ly to Marsh’s invitation to provide further proof by providing
various documents and a narrative explanation. (Id.)
In addition, between October 11, 2011, and April 12, 2012,
Respondent engaged in a series of actions inconsistent with a
total contract repudiation. Drew’s unrebutted testimony was
that the parties proceeded through all of the steps of the griev-
ance procedure related to the Burlington grievance short of
arbitration. (Tr. 53–55.) An arbitrator was appointed and, in
February 2012, he sought to schedule a date for an arbitration
hearing. I find that Respondent’s actions in continuing to pro-
cess the Burlington grievance through at least February 2012,
belie its assertion that it repudiated the QCBA agreement in
2011. Instead I have found that Respondent first clearly and
unequivocally repudiated the QCBA agreement on April 12,
2012, and Respondent’s actions in processing the Burlington
grievance through 2012 defeat its 10(b) defense.14
D. Respondent’s Single-Person Unit Defense
Respondent asserts as an affirmative defense that the bar-
gaining unit at issue consisted of no more than a single employ-
ee. (GC Exh. 1(f).) As stated above, an employer’s repudiation
of an 8(f) agreement will generally violate Section 8(a)(5) of
the Act. Cedar Valley Corp., 302 NLRB 823 (1991), enfd. 977
F.2d 1211 (8th Cir. 1992). However, an employer may lawful-
ly repudiate an 8(f) agreement when there is no more than one
employee in the bargaining unit. See Stack Electric, 290
NLRB 575, 578 (1988), and Seals Refrigeration, 297 NLRB
133, 135 (1989).

14 I also do not find that Respondent’s letters to the Laborers and
Great Plains Labor Council would have placed the Union on notice that
Respondent was using Laborers to perform union work. There is no
evidence that any of these documents were ever provided to the Union
prior to the filing of the charge.
It is Respondent’s burden of proof to establish the existence
of a stable one person unit. See Galicks, Inc., 354 NLRB 295
(2009), remanded on other grounds 188 L.R.R.M. 3024 (6th
Cir. 2010). The Board requires proof that the purportedly sin-
gle employee unit was a stable one, not merely a temporary
occurrence. McDaniel Electric, 313 NLRB 126, 127 (1993).
Marsh testified that since 2003, Respondent has not em-
ployed more than one operator at a time within the Union’s
jurisdiction. (Tr. 80.) I have discredited Marsh on this point,
as his testimony is not supported by appropriate documentary
evidence. Marsh testified that he reviewed Respondent’s pay-
roll records in reaching his conclusion that Respondent has
never employed more than one operator at a time. (Id.) These
records were not produced at the hearing. The failure of a re-
spondent to produce relevant evidence that is particularly under
its control allows the trier of fact to draw an adverse inference
that such evidence would not be favorable to it. International
Automated Machines, 285 NLRB 1122, 1123 (1987); Martin
Luther King, Sr. Nursing Center, 231 NLRB 15 fn. 1 (1977). I
draw an adverse inference from Respondent’s failure to pro-
duce any evidence, particularly the payroll records referenced
by Marsh, at the hearing to support its single-person unit de-
fense. Therefore, I find that Marsh’s conclusory testimony that
Respondent has never employed more than one operator fails to
meet Respondent’s burden of establishing the existence of a
stable one person unit.
More troubling in this regard is Respondent’s apparent use of
Laborers to perform work reserved for the Union in the QCBA
agreement. Evidence adduced at trial indicated that Respond-
ent has been using Laborers to perform union work. Letters
sent by Respondent to the Laborers and the Great Plains Labor-
ers’ District Council clearly demonstrate that Respondent has
attempted to assign work belonging to the Union, per the valid
and enforceable QCBA agreement, to the Laborers.15 (See R.
Exhs. 1, 9, 11, 12.) Respondent has not refuted that it used
Laborers to perform union work, as I infer from these exhibits.
Thus, I find that Respondent indeed used Laborers to perform
union work as defined in the QCBA agreement.
As Respondent used Laborers to perform Union work as
covered under the QCBA agreement, its actions arguably
breached Respondent’s contractual undertaking not to sublet or
assign the Union’s work. Respondent should not be allowed to
escape what would otherwise be its obligation to honor its col-
lective-bargaining agreement on the basis of this situation, oc-
casioned by its breach of the QCBA agreement. Accordingly, I
find that Respondent’s single-person unit defense fails.
E. Respondent’s Remaining Defenses
Another of Respondent’s affirmative defenses is that the
charge and complaint represent an effort by the Union to cir-
cumvent Board procedures to obtain work. (R. Br. p. 19.)
Stated another way, Respondent claims that this matter is, in

15 These documents are consistent with a statement made by Re-
spondent’s counsel at hearing that Laborers have performed union
work. (Tr. 105.) When I asked Respondent’s counsel whether during
the relevant time period there was work available for a union operator
and the Laborers claimed the work, he responded, “. . . the Laborers
performed it.” (Id.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD876
essence, a jurisdictional dispute. (GC Exh. 1(f).) I find that
this affirmative defense is both without support and without
merit.
On this point I agree with the General Counsel that even if
the Union has filed this charge to circumvent the Board’s pro-
cedures for resolving jurisdictional disputes, such action would
not be unlawful. Respondent’s evidence supporting its jurisdic-
tional dispute defense consists of Marsh’s testimony, evidence
of an 8(b)(4)(D) charge filed with the Board, evidence regard-
ing arbitration of the grievance brought under the PLA, and
letters sent to the Laborers and the Great Plains Labor Council
regarding Respondent’s attempts to reassign Union work to the
Laborers.
Respondent filed an 8(b)(4)(D) charge with the Board in late
January 2012. In its charge, Respondent alleged that the Union
was pressuring Respondent for work it had assigned to the La-
borers (work I have already found was properly assigned to the
Union by way of the QCBA agreement). (R. Exh. 12.) Re-
spondent further alleged that the Laborers were threatening a
work stoppage if Respondent “reassigned” this work. (Id.)
This charge was rather swiftly dismissed by the Regional Di-
rector, who found no competing claims to the work. (R. Exh.
13.) Thus, a 10(k) hearing, the Board’s mechanism for resolv-
ing jurisdictional disputes, was never held.
I find that it was Respondent who has created this “jurisdic-
tional dispute.” Respondent was already signatory to the
QCBA agreement when it attempted to assign union work to
the Laborers. The Union’s attempt to enforce the QCBA does
not create a jurisdictional dispute. Instead, Respondent seeks to
benefit from its refusal to adhere to the valid and enforceable
QCBA agreement by creating this dispute. Respondent should
not benefit from its efforts to violate the QCBA agreement by
“assigning” the Union’s work to the Laborers.
Not surprisingly, Respondent provided no case law to sup-
port its jurisdictional dispute affirmative defense. Instead, Re-
spondent’s brief invites the reader to see A & L Underground,
302 NLRB 476 (1991). Respondent cites this case for the
proposition that the Board should promote stable collective-
bargaining relationships by precluding extended periods of
uncertainty regarding the validity of collective-bargaining rela-
tionships. (R. Br. p. 21.) I find Respondent’s citation to this
case in support of its affirmative defense inappropriate. In a
portion of the case regarding a 10(b) defense as it related to the
theory of a continuing violation of the Act, the Board did in-
deed make the statement attributed to it by Respondent. See
302 NLRB at 468. However, nothing in A & L Underground
implicated a jurisdictional dispute or “forum shopping.” As
such, I find Respondent’s citation to this case as a basis for its
jurisdictional dispute defense to be misplaced.16

16 Furthermore, Respondent’s statement in its brief that the Union is
seeking “another chance to convince an arbitrator that the work per-
formed at the Burlington project by Laborers should have been per-
formed by a member of the Union” is puzzling. (R. Br. p. 21.) The
arbitrator’s decision Respondent sought to present at hearing, an exhibit
I rejected, concerned the grievance brought by the Union under the
PLA, not the Burlington grievance. (R. Rejected Exh. 8.)
In addition to the affirmative defenses discussed above, Re-
spondent raised a number of other affirmative defenses. (GC
Exh. 1(f).) Specifically, Respondent alleged that: the complaint
fails to allege sufficient facts to state a claim upon which any
relief may be granted; the relationship between the parties was
in accordance with Section 8(f) of the Act; the Union terminat-
ed the QCBA agreement in 2006; and the complaint seeks an
impermissible remedy. (Id.). I have already discussed that the
parties’ relationship was valid under Section 8(f) and that ex-
tant Board law does not permit wholesale repudiation of an 8(f)
agreement absent certain limited circumstances.17 I have fur-
ther discussed that the Union did not terminate the QCBA
agreement in 2006. Respondent presented no evidence support-
ing its other affirmative defenses at the hearing and the affirma-
tive defenses were not raised in Respondent’s brief. As Re-
spondent seems to have abandoned these remaining affirmative
defenses, I will not address them further.
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 meaning of
Section 2(5) of the Act.
3. By repudiating the collective-bargaining agreement be-
tween the International Union of Operating Engineers, Local
150, AFL–CIO and the Quad Cities Builders Association, Inc,
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. I recommend that the Respondent be or-
dered to implement and adhere to the terms of the collective-
bargaining agreement between the Union and the Quad Cities
Builders Association, Inc., effective for the period June 1,
2010, through May 31, 2014, and to make whole the unit em-
ployees for any loss of wages or other benefits that they sus-
tained as a result of Respondent’s repudiation of its responsibil-
ities and obligations under this contract. I also recommend that
Respondent be ordered to pay to the appropriate union funds all
health, welfare, pension, and other fringe benefits as provided
for in the contract. I further recommend that Respondent file a
report with the Social Security Administration allocating back-
pay to the appropriate calendar quarters. Respondent shall also
compensate any discriminatee(s) for the adverse tax conse-
quences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year, Latino Express,
Inc., 359 NLRB 518 (2012).
[Recommended Order omitted from publication.]

17 I have not found any such circumstances to be present in this
case.