Carmichael Construction Company

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 226 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carmichael Construction Company and United
Brotherhood of Carpenters and Joiners of
America, Local Union No. 1672, AFL-CIO
Hahn & Hupf Construction, Inc. and United Broth-
erhood of Carpenters and Joiners of America,
Local Union No. 1672, AFL-CIO
Kealy Construction Company and United Brother-
hood of Carpenters and Joiners of America,
Local Union No. 1672, AFL-CIO. Cases 17-
CA-9748-1, 17-CA-9748-2, and 17-CA-9748-
3
September 23, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, ANI)
ZIMMIRMAN
On April 29, 1981, Administrative Law Judge
Jay R. Pollack issued the attached Decision in this
proceeding. Thereafter, the Respondents filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
The Administrative Law Judge found, and we agree, that Respond-
ents, Carmichael Construction Company, Hahn & Hupf Construction,
Inc., and Kealy Construction Company. violated Sec. 8(a)(5) and () of
the Act by withdrawing recognition from and thereafter refusing to bar-
gain with the Union herein and that Respondent Keal) Construction
Company further violated Sec. 8(a)(5) and (1) of the Act bh unilaterally
granting its employees an increase in their wage rates. In so doing, we
adopt the Administrative Law Judge's finding that. while Respondents
appear to he engaged in the construction industry, there is no evidence in
the record to indicate that the initial agreement between the Union and
Respondents, or for that matter any of the subsequent agreements, was a
prehire agreement under Sec. 8(f) of the Act. Nor is there any evidence
to indicate that the Union did not enjoy the support of a majority of Re-
spondents' employees prior to the execution of the initial agreement or at
any time subsequent thereto. In fact, the record reveals otherwise Thus,
Respondents' position as stated at the hearing was that, "in 1980, the
union ceased to represent a majority" of Respondents' carpenter employ-
ees "and that was the basis for the refusal to bargain at that time." It is
therefore apparent that Respondents, prior to their refusal to bargain in
1980, never questioned the majority status of the Union and in fact be-
lieved that the Union had the support of a majority of their employees.
Under these circumstances, we find that Respondents have conceded the
majority status of the Union at all times prior to 1980 and that their sub-
sequent refusals to bargain were, as found by the Administrative Law
Judge, unlawful. In so finding, we do not rely on. and hereby disavow,
the Administrative Law Judge's finding that "[t]he execution of the suc-
ceeding contracts makes Section 8(f) irrelevant and, therefore, raises the
presumption that the Union was the majority representative of the unit
employees."
258 NLRB No. 32
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, Carmichael
Construction Company, Hahn & Hupf Construc-
tion, Inc., and Kealy Construction Company, Has-
tings, Nebraska, their officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notices are substituted for those of the Administra-
tive Law Judge.
APPENDIX A
NoTicl- To EMPI.OErliS
POSTErl BY ORI)ER OF THE
NATIIONAI. LABOR RI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Wt- WIL.L NOT refuse to recognize and to
meet and bargain collectively with United
Brotherhood of Carpenters and Joiners of
America, Local Uion No. 1672, AFL-CIO,
as the exclusive bargaining representative of
all our employees in the following appropriate
bargaining unit:
All carpenters employed by Carmichael
Construction Company within the jurisdic-
tion of the Union.
WE WILl. NO-r in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE Wll.l, upon request, recognize and bar-
gain collectively with the above-named Union
as the exclusive bargaining representative of
all employees in the above-described bargain-
ing unit, respecting rates of pay, wages, hours
of employment, and other terms and condi-
tions of employment, and, if any understand-
226
CARMICHAEL CONSTRUCHTI ON COMPANY
ings be reached, embody such understandings
in a signed contract.
CARMICHAEL CONSTRUCTION CONl-
PANY
APPENDIX B
NOTICE To ENIPI.OYEiS
POSTED BY ORI)DER OF THE
NATIONAl LABOR RE.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WIL NOT refuse to recognize and to
meet and bargain collectively with United
Brotherhood of Carpenters and Joiners of
America, Local Union No. 1672, AFL-CIO,
as the exclusive bargaining representative of
all our employees in the following appropriate
bargaining unit:
All carpenters employed by Hahn & Hupf
Construction, Inc., within the jurisdiction of
the Union.
WE WIL.L NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, upon request, recognize and bar-
gain collectively with the above-named Union
as the exclusive bargaining representative of
all employees in the above-described bargain-
ing unit, respecting rates of pay, wages, hours
of employment, and other terms and condi-
tions of employment, and, if any understand-
ings be reached, embody such understandings
in a signed contract.
APPENDIX C
NoTrItc To EMPI OYN S s
PoSIi:I HBY ORDEII:R OF HI
NAr IONAI. LAHOR RI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has o dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to recognize and to
meet and bargain collectively with United
Brotherhood of Carpenters and Joiners of
America, Loc-.l Union No. 1672, AFL-CIO,
as the exclusive bargaining representative of
all our employees in the following appropriate
bargaining unit:
All carpenters employed by Kealy Con-
struction Company within the jurisdiction of
the Union.
WE WILL NOT unilaterally grant wage in-
creases or make any other unilateral changes
in the unit employees' terms and conditions of
employment without having first bargained in
good faith with the Union to a new contract
or to an impasse.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, upon request, recognize and bar-
gain collectively with the above-named Union
as the exclusive bargaining representative of
all employees in the above-described bargain-
ing unit, respecting rates of pay, wages, hours
of employment, and other terms and condi-
tions of employment, and, if any understand-
ings be reached, embody such understandings
in a signed contract.
HAHN & HUPF CONSTRUCTION, INC.
227
KEALYYCONSTRUCTION COPANY
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JAY E. POLLACK, Administrative Law Judge: These
consolidated cases were heard before me at Hastings,
Nebraska, on February 24, 1981. On June 18, 1980,L
United Brotherhood of Carpenters and Joiners of Amer-
ica, Local Union No. 1672, AFL-CIO, herein called the
Union, filed separate charges with the Regional Director
for Region 17 of the National Labor Relations Board,
herein called the Board, against Carmichael Construction
Company, herein called Respondent Carmichael, Hahn &
Hupf Construction, Inc., herein called Respondent Hahn,
and Kealy Construction Company herein called Re-
spondent Kealy, all of which are herein collectively re-
ferred to as Respondents. On July 31, the Union amend-
ed the charges filed against Respondent Carmichael and
Respondent Hahn. On August 7, the Acting Regional
Director issued an order consolidating cases and a con-
solidated complaint against Respondents. The complaint
alleges, in substance, that Respondents engaged in certain
violations of Section 8(a)(l) and (5) of the National
Labor Relations Act, as amended, herein called the Act.
All parties are given full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Based on the
entire record, and from my observation of the demeanor
of the witnesses, and after due consideration of the briefs
filed on behalf of the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondents are each a Nebraska corporation engaged
as a general contractor in the building and construction
industry with an office and principal place of business in
Hastings, Nebraska. During the course and conduct of its
business operations, each annually purchases goods and
services valued in excess of $50,000 from sources within
Nebraska, which sources, in turn, purchase such goods
and services directly from sources located outside Ne-
braska.
Accordingly, Respondents admit and I find that Re-
spondents are each an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Bargaining History and Issues
As shown above, Respondents are engaged in the con-
struction industry in Hastings, Nebraska. The parties stip-
ulated that from at least 1972 until May 1, 1980, each of
Respondents has been party to successive I-year collec-
Unless otherwise stated, all dates refer to calendar year 1980.
tive-bargaining agreements with the Union. 2 Each of Re-
spondents had a separate but identical collective-bargain-
ing agreement with the Union effective by its terms from
May 1, 1979, to May 1, 1980. Each collective-bargaining
agreement covered a bargaining unit of all carpenter em-
ployees of the respective Respondent within the jurisdic-
tion of the Union.
The parties further stipulated that by letters dated Feb-
ruary 28, 1980,3 sent to each Respondent, the Union re-
quested to bargain with each for a new contract. How-
ever, Respondents did not respond to that letter. Again
on February 22, the Union sent each Respondent a letter
requesting bargaining for a new contract. On February
27, each Respondent notified the Union of its intention to
terminate its collective-bargaining agreement as of May
1. On April 14, the Union sent each Respondent a letter
requesting bargaining negotiations and setting a negotia-
tion meeting for April 24. None of Respondents respond-
ed to that letter and none attended the meeting on April
28. On April 25, the Union sent each Respondent a letter
setting a negotiation meeting for April 28. None of Re-
spondents responded to that letter and none attended the
meeting of April 28. On May 7, the Union received a
separate hand- delivered letter from each of Respondents
offering to extend its collective- bargaining agreement to
May 9, 1981, with no other changes. On May 8, the
Union responded to each Respondent's letter accusing
each of bargaining in bad faith and inviting each to a ne-
gotiation meeting on May 9. None of Respondents re-
sponded to this letter and none attended the meeting of
May 9. On May 14, the Union sent each Respondent a
letter offering to accept the offer of May 7 to extend the
contract from May 1, 1980, to May 1, 1981. 4 None of
Respondents responded to this letter. The Union voted
to strike each Respondent on May I and voted to end
the strike against each on May 17, 1980.
Within this factual context, the General Counsel con-
tends that each Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to bargain with the
Union. Further, the General Counsel contends that Re-
spondent Kealy violated Section 8(a)(5) and (1) by uni-
laterally granting its employees a wage increase without
prior notification to and bargaining with the Union.5
Each Respondent contends that it was privileged to
refuse to negotiate with the Union based on a good-faith
doubt of the Union's majority status.
B. Respondents' Good-Faith Doubt
Bernard Dale Hamburger, Jr., vice president of Re-
spondent Carmichael, testified that he did not bargain
with the Union based on his doubt that the Union repre-
sented a majority of Respondent Carmichael's employ-
ees. According to Hamburger this doubt was based on
2 Prior to 1972, Respondents were parties to a multiemployer contract
with the Union.
s Although dated February 28, the letters were actually sent on Janu-
ary 28.
4 There was no contention by any of the parties that a contract was
formed and the issue was not litigated.
* The parties stipulated that, prior to May I, Respondent Kealy paid
its journeymen carpenters $9.35 per hour and, after May I, it paid its
journeymen $10.10 per hour.
228
CARMICHAEL CONSTRUCTION COMPANY
his general feelings and his conversations with two em-
ployees. 6 These employees mentioned in 1979 that they
believed the Union had sought too high a wage increase
and that if the Union repeated such conduct they "would
not go back with the Union." One of these employees
also expressed dissatisfaction with the Union for allowing
unskilled workers into membership.
Harold Hahn, president of Respondent Hahn, testified
that he thought the Union did not represent a majority
of Respondent Hahn's employees. Hahn's doubt was
based on general feelings. He testified that one employee
told Hahn that no one approached the employee to join
the Union and another employee told Hahn that the em-
ployee was not a member of the Union. 7
John F. Kealy, president of Respondent Kealy, testi-
fied that his good-faith doubt was based on a general
feeling. He further testified that four employees ex-
pressed dissatisfaction with the Union because it allowed
into membership workers who were not fully qualified
carpenters.8 Kealy spoke to only two of these employees
himself. His knowledge with regard to the other two em-
ployees is based on a conversation with one of his cus-
tomers. His customer told him that two or three carpen-
ters were upset with the Union and were going to drop
out of it.
With regard to the allegation concerning the wage in-
crease, Kealy testified that he told Clarence Cawertzel,
then a former union business representatives that he had
no objection to an 8-percent wage increase. However,
during their discussions Kealy made it clear that he had
no intention of bargaining with the Union and that he
did not believe it represented a majority of his employ-
ees.
IV. CONCLUSIONS
A. The Refusal To Bargain
It is well established that the existence of a prior con-
tract, lawful on its face, is sufficient to raise a dual pre-
sumption of majority representative status, first that the
union had majority status when the contract was execut-
ed, and second that majority status continued at least
through the life of the contract. Following the expiration
of the contract the presumption continues and the
burden of rebutting it rests on the party who would do
so. See Pioneer Inn Associates, d/b/a Pioneer Inn and Pio-
neer Inn Casino, 228 NLRB 1263 (1977), enfd. 578 F.2d
835 (9th Cir. 1978); Bartenders, Hotel, Motel and Restau-
rant Employer Bargaining Association of Pocatello, Idaho
and its Employer-Members, 213 NLRB 651 (1974). Apply-
ing these principles to the instant case, the existence of a
valid collective-bargaining agreement with each of Re-
spondents gave rise to the presumption that the Union
had majority representative status; i.e., that a majority of
I At the times material herein, Respondent Carmichael contends that it
employed 47 carpenters. The General Counsel contends that Respondent
Carmichael employed approximately 24 carpenters.
Respondent Hahn employed approximately II carpenters
Respondent Kealy contends that it employed 49 carpenters The
General Counsel contends that Respondent Kealy employed approxi-
mately 18 carpenters.
9 Cawertzel died prior to the instant hearing.
the employees in each unit wished to have the Union as
their collective-bargaining representative.
The above principles apply notwithstanding that Re-
spondents are engaged in the building and construction
industry. A prehire agreement in the construction indus-
try, while lawful by virtue of Section 8(f) of the Act,' °
does not raise a presumption that the union had majority
status. N.L.R.B. v. Local Union No. 103, International As-
socaition of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO [Higdon Contracting Co.], 434 U.S. 335
(1978). However, here there is no evidence that the ini-
tial agreement between the Union and any of Respond-
ents was an 8(f) contract; i.e., that the Union was not the
majority representative of the unit employees when the
first contract was executed. Further the parties stipulated
that a series of succeeding contracts were executed. The
execution of the succeeding contracts makes Section 8(f)
irrelevant and, therefore, raises the presumption that the
Union was the majority representative of the unit em-
ployees. See Custom Sheet Metal & Service Co., Inc., 243
NLRB 1102 (1979); Williams Enterprises, Inc., 212 NLRB
880, 885 (1974). See also N.L.R.B. v. Haberman Con-
struction Company, 618 F.2d 288, 310, fn. 24 (5th Cir.
1980). Accordingly, under the applicable law above, the
General Counsel has made out a prima facie case that the
Union was the majority representative of the employees
of each of the three units and that each Respondent was
obligated to continue to bargain with the Union. It is in-
cumbent on each Respondent to rebut that prima facie
case.
A prima facie case of such a refusal to bargain may be
rebutted if the employer affirmatively establishes either:
(I) that at the time of the refusal the Union in fact no
longer enjoyed majority representative status; or (2) that
the employer's refusal was predicted on a good-faith and
reasonably grounded doubt of the Union's continued ma-
jority status. Sahara-Tahoe Corporation d/b/a Sahara-
Tahoe Hotel, 229 NLRB 1094 (1977); Pioneer Inn, supra.
With regard to the defense of "good faith doubt" raised
'0 Sec. 8(f) provides:
It shall not be an unfair labor practice under subsections (a) and (b)
of this section for an employer engaged primarily in the building and
construction industry to make an agreement covering employees en-
gaged (or who, upon their employment. will be engaged) in the
building and construction industry with a labor organization of
which building and construction employees are members (not estab-
lished, maintained, or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice) because (1) the majority status of
such labor organization has not been established under the provisions
of section 9 of this Act prior to the making of such agreement, or (2)
such agreement requires as a condition of employment, membership
in such labor organization after the seventh day following the begin-
ning of such employment or the effective date of the agreement,
whichever is later, or (3) such agreement requires the employer to
notify such labor organization of opportunities for employment with
such employer, or gives such labor organization an opportunity to
refer qualified applicants for such employment, or (4) such agree-
ment specifies minimum training for experience qualifications for em-
ployment or provides for priority in opportunities for employment
based upon length of service with such employer, in the industry or
in the particular geographical area: Provided. That nothing in this
subsection shall set aside the final proviso to section 8(a)3) of this
Act: Provided further. That an) agreement which would be invalid,
but for clause (I) of this subsection, shall not be a bar to a petition
filed pursuant to section
9
(c) or (e)
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, two prerequisites for sustaining the defense are
that the asserted doubt must be based on objective con-
siderations and it must be raised in context free of unfair
labor practices. Sierra Development Company, d/b/a Club
Cal-Neva, 231 NLRB 22 (1977); Pioneer Inn, supra.
In support of their assertion that each refusal to bar-
gain was predicated on a good-faith doubt of the Union's
majority status, Respondents rely on: (1) general feelings;
and (2) conversations with employees. l As indicated
above, the defense must be based on objective consider-
ations. Respondents' general feelings are insufficient, as a
matter of law, to sustain this defense. To hold otherwise
would permit Respondents to withdraw recognition from
the Union at will.
I also find that the instant conversations with employ-
ees are insufficient to establish a good-faith doubt. Such
conversations were too vague and generalized to estab-
lish that the employees did not want the Union to repre-
sent them. The remarks of the employees amounted, at
most, to criticism or dissatisfaction with the Union but
did not indicate a rejection of the Union as collective-
bargaining representative. See Retired Persons Pharmacy,
t/a NRTA-AARP Pharmacy, 210 NLRB 443, 446 (1974),
enfd. 519 F.2d 486 (2d Cir. 1975). Moreover, assuming,
arguendo, that such employees did reject the Union as
their bargaining representative, rejection and/or criticism
of the bargaining representative by a minority of the unit
employees is insufficient to support a reasonable doubt of
the Union's continued majority status. Thomas Industries,
Inc., 255 NLRB 646 (1981). Accordingly, I find that Re-
spondents' asserted defenses of a good-faith doubt of the
Union's majority status were not supported by sufficient
evidence. 1, therefore, find that Respondents were obli-
gated to continue bargaining with the Union.
Respondents withdrew recognition from and refused
to meet and bargain with the Union, thereby violating
Section 8(a)(5) and (1) of the Act.
B. The Alleged Unilateral Change
Section 8(a)(5) and Section 8(d) of the Act impose an
affirmative duty on employers to bargain with the exclu-
sive bargaining representative of their employees over
"wages, hours and other terms and conditions of employ-
ment." The employer's duty is breached when, absent
bargaining to impasse or union waiver, an employer
alters existing job terms without notifying and bargaining
with the union concerning the change. N.L.R.B. v.
Benne Katz, etc. d/b/a Williamsburg Steel Products Co.,
369 U.S. 736, 743-748 (1962). Further, the employer's
duty to bargain over changes in job terms is not relieved
by the expiration of a contract. Harold W Hinson d/b/a
Hen House Market No. 3 v. N.L.R.B., 428 F.2d 133, 137
(8th Cir. 1970); N.L.R.B. v. Sky Wolf Sales, 470 F.2d
827, 830 (9th Cir. 1972).
In the instant case, Respondent Kealy increased the
wages of its employees represented by the Union. John
I In their post-hearing brief, Respondents argue that union records
show that a majority of the employees in each unit were not members of
the Union. It is well established that a union need not have majority sup-
port in terms of membership on dues checkoff in order to enjoy the pre-
sumption of continued majority status. See, e.g., Petroleumn Contracors,
Inc.. 250 NLR 664 (1980).
Kealy told former business representative Cawertzel that
"he had no objection to a 8% wage increase." However,
Kealy also told Cawertzel that he had no intention of
bargaining with the Union and that he doubted its major-
ity status.' 2 Moreover, Respondent Kealy was refusing
to meet and negotiate with the Union. Under such cir-
cumstances, it cannot be said that Respondent Kealy bar-
gained to impasse before changing its wage rates. Fur-
ther, it cannot be said that the Union waived its right to
bargain over such a change. At all times material, the
Union was requesting that Respondent Kealy bargain
with it for a new collective-bargaining agreement. Re-
spondent Kealy contended it was not required to bargain
with the Union but did offer to extend the contract an-
other year; this extension would have been at a wage
rate lower than that granted unilaterally to its employ-
ees. No explanation for this lower wage rate was offered.
In any event, while Respondent Kealy was unlawfully
refusing to bargain with the Union, no relinquishment or
waiver of the Union's rights can be assumed. The waiver
of the right to bargain over mandatory subject of bar-
gaining such as wages must be clear and unmistakable.
See, e.g., Metromedia, Inc. KMBC-TV v. N.L.R.B., 586
F.2d 1182, 1189 (8th Cir. 1978). No clear and unmistak-
able waiver can be found herein.
Based on the foregoing, I find that on or about May 1,
1980, Respondent Kealy unilaterally raised the wage
rates of journeymen carpenters represented by the Union
without offering the Union an opportunity to bargain
and that by engaging in this conduct Respondent Kealy
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondents Carmichael Construction Company,
Hahn & Hupf Construction, Inc., and Kealy Construc-
tion Company are each an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of
America, Local Union No. 672, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. Each bargaining unit of all carpenter employees of
the respective Respondent within the jurisdiction of the
Union constitutes a unit appropriate for purposes of col-
lective bargaining.
4. At all times material, the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees of each of the three above-described units within the
meaning of Section 9(a) of the Act.
5. By withdrawing recognition of the Union as the
bargaining representative of its employees in the appro-
priate bargaining unit described above and by refusing to
meet and bargain with the Union, Respondent Carmi-
chael violated Section 8(a)(5) and (1) of the Act.
6. By withholding recognition of the Union as the bar-
gaining representative of its employees in the appropriate
bargaining unit described above and by refusing to meet
12 Kealy gave no notice oif an intention to raise wages to Russell
Parks, the Union's business representative since late 1979.
230
CARMICHAEL CONSTRUCTION COMPANY
and bargain with the Union, Respondent Hahn violated
Section 8(a)(5) and (1) of the Act.
7. By withholding recognition of the Union as the bar-
gaining representative of its employees in the appropriate
bargaining unit described above, by refusing to meet and
bargain with the Union, and by bilaterally changing the
wage rates of its journeymen carpenters, Respondent
Kealy violated Section 8(a)(5) and (1) of the Act.
8. The unfair labor practices of Respondents, as de-
scribed above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents engaged in certain
unfair labor practices, I shall recommend that they be or-
dered to cease and desist therefrom and that they take
certain affirmative action to effectuate the policies of the
Act. To avoid use of the Board's processes to deprive
the employees of their increased wages and in the ab-
sence of a request from the Union, Respondent Kealy
shall not be ordered to rescind its unilateral wage in-
crease. See Bellingham Frozen Food., : -: of San
Juan Packers, 237 NLRB 1450, 1467, fn. 30 (1978).
Upon the foregoing facts and conclusions of law, and
upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 3
A. Respondent Carmichael Construction Company,
Hastings, Nebraska, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and to meet and bargain col-
lectively with United Brotherhood of Carpenters and
Joiners of America, Local Union No. 1672, AFL-CIO,
as the exclusive bargaining representative of its employ-
ees in the bargaining unit heretofore found appropriate in
Conclusions of Law 3, above.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights granted to them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Upon request, recognize and bargain collectively
with the above-named Union as the exclusive bargaining
representative of its employees employed in the bargain-
ing unit heretofore found appropriate in Conclusions of
Law 3, above.
(b) Post at its Hastings, Nebraska, places of business
copies of the attached notice marked "Appendix A."' 4
'3 All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by
Sec. 102.46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations. be adopted by the
Board and become its findings, conclusions, and Order. and all objection,
thereto shall be deemed waived for all purposes
14 In the event that this Order is enforced by a Judgment of a Unlited
States Court of Appeals, the words in the notice reading "'Poted bh
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor Relations Board.
Copies of the notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an au-
thorized representative, shall be posted by Respondent
Carmichael immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent Carmichael to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent Carmichael has taken to comply here-
with.
B. Respondent Hahn and Hupf Construction, Inc.,
Hastings, Nebraska, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and to meet and bargain col-
lectively with United Brotherhood of Carpenters and
Joiners of America, Local Union No. 1672, AFL-CIO,
as the exclusive bargaining representative of its employ-
ees in the bargaining unit heretofore found appropriate in
Conclusions of Law 3, above.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights granted to them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Upon request, recognize and bargain collectively
with the above-named Union as the exclusive bargaining
representative of its employees in the bargaining unit
heretofore found appropriate in Conclusions of Law 3,
above.
(b) Post at its Hastings, Nebraska, places of business
copies of the attached notice marked "Appendix B."" '
Copies of the notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an au-
thorized representative, shall be posted by Respondent
Hahn immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent Hahn to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent Hahn has taken to comply herewith.
C. Respondent Kealy Construction Company, Has-
tings, Nebraska, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Refusing to recognize and to meet and bargain col-
lectively with United Brotherhood of Carpenters and
Joiners of America, Local Union No. 1672, AFL-CIO,
as the exclusive bargaining representative of its employ-
ees in the bargaining unit heretofore found appropriate in
Conclusions of Law 3. above.
' Seec fn 14, upra.
231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Unilaterally granting wage increases or making any
other unilateral changes in the unit employees' terms and
conditions of employment without having first bargained
in good faith with the Union to a contract or to an im-
passe.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights granted to them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Upon request, recognize and bargain collectively
with the above-named Union as the exclusive bargaining
representative of its employees employed in the bargain-
ing unit heretofore found appropriate in Conclusions of
Law 3, above.
(b) Post at its Hastings, Nebraska, places of business
copies of the attached notice marked "Appendix C." 16
Copies of the notice, on forms provided by the Regional
Director for Region 17, after being duly signed by an au-
thorized representative, shall be posted by Respondent
Kealy immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent Kealy to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent Kealy has taken to comply herewith.
16 See fn. 14. supra.
232