Carrothers Construction Company

National Labor Relations Board - Board Decisions

Sep 23, 1981

258 N.L.R.B. 175 (N.L.R.B. 1981)

CARROTHERS CONSTRUCTION COMPANY
Carrothers Construction Company, Inc. and Iron
Workers Local Union No. 10. Case 17-CA-
8572
September 23, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 1, 1979, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this case in which he found that Respondent violat-
ed Section 8(a)(5) and (1) of the Act by unilaterally
repudiating its collective-bargaining agreement
with the Union. Simultaneously, the General Coun-
sel filed, pursuant to Section 102.24 of the Board's
Rules and Regulations, Series 8, as amended, a
"Motion to Reopen Record and Reverse Ruling
Revoking Subpoena Duces Tecum." Thereafter Re-
spondent filed exceptions and a brief in support
thereof, and the General Counsel filed an answer-
ing brief. In its brief Respondent argued that its re-
pudiation of the parties' collective-bargaining
agreement did not violate Section 8(a)(5) because
the General Counsel had failed to establish that the
Union had enjoyed majority status in an appropri-
ate unit and that the collective-bargaining relation-
ship had been entered into under Section 9(a)
rather than pursuant to Section 8(f) of the Act. The
General Counsel argued in opposition that any fail-
ure to establish the Union's majority status was the
result of the exclusion of evidence offered to prove
such status, and that the General Counsel had
timely objected to the exclusion of this evidence at
the hearing. On December 14, 1979, the Board
issued an "Order Reopening Record and Remand-
ing Proceeding to Regional Director" for further
hearing to permit introduction of evidence on
whether the Union represented a majority of em-
ployees within an appropriate unit. On January 8,
1980, the Board denied Respondent's motion for re-
consideration of its order reopening record. The
Board also referred to the Administrative Law
Judge Respondent's "Motion to Revoke Subpoena
Duces Tecum," which sought to avoid production
of certain payroll records, and denied Respondent's
motion for extension of the hearing date. A hearing
was conducted on January 8, 1980, by Administra-
tive Law Judge Heilbrun, who, on June 16, 1980,
issued the attached Supplemental Decision. There-
after, Respondent filed exceptions to the Supple-
mental Decision and a supporting brief, in which it
adopted by reference its exceptions to the original
Decision of Administrative Law Judge Heilbrun,
and to which it attached its "Motion to Reconsider
Order Reopening Record, Petition to Revoke Sub-
258 NLRB No. 15
poena Duces Tecum," and "Amendment to Re-
spondent's Petition to Revoke Subpoena Duces
Tecum."
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 and Supplemental Decision in
light of the exceptions and briefs and has decided
to affirm the rulings, findings, and conclusions' of
the Administrative Law Judge and to adopt his
recommended Order,2 as modified herein. 3
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 as modi-
fied below, and hereby orders that the Respondent,
Carrothers Construction Company, Inc., Ottawa,
Kansas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Make Bill McGinnis, Pat McGinnis, and any
persons as may be identified, whole for any losses
suffered by them by reason of Respondent's failure
and refusal to honor and apply terms of the collec-
tive-bargaining agreement referred to in paragraph
l(a) above.4 Such losses shall be computed as pre-
In affirming the conclusions of the Administrative Law Judge, we do
not rely on his statement that the Association agreements to which Re-
spondent and the Union were bound contained union-security clauses re-
quiring maintenance of membership in the Union and thus constitute evi-
dence of the Union's continued majority status in an appropriate unit; by
their terms these clauses are void in the State of Kansas and could not
legally have been enforced there. See R. J. Smith Construction Co.. Inc..
191 NLRB 693, fn. 5 at 695 (1971): Davis Industries. Inc.; Stag Construc-
tion, Inc. and Add Miles Inc., 232 NLRB 946, 952 (1977). Rather, we rely
on the Administrative Law Judge's findings at fns. 2 and 3, and accompa-
nying text of his Supplemental Decision which indicate that at the time
the 1966 stipulation was signed the Union represented a majority of a
representative complement of employees in an appropriate unit, and that
Respondent employed a stable work force from the time the stipulation
was signed until the end of 1967. Cf. Gordon L Rayner and Frank H.
C/ark. d/b/a Bay Area Sealers, 251 NLRB 89, 122-124, 128-129, and 132-
133 (1980).
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
I We note that we have conformed the affirmative portion of the rec-
ommended Order of the Administrative Law Judge to the cease-and-
desist portion thereof.
4 The record in this proceeding was completed prior to the expiration
date of the parties' collective-bargaining agreement, which has subse-
quently occurred. It therefore does not reveal whether the contract.
which included an automatic renewal clause, was terminated by the par-
ties. Our affirmative order should hence be understood to include adher-
ence either to the contract or to the terms and conditions established by
the contract unless and until they have been changed through collective
bargaining or fllowing a bona fide impasse See Gordon L. Rayner and
Frank H. Clark. d/b/a Bay.4rea Sealers, 251 NLRB at 89.
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed in F W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS 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 WILL NOT refuse to abide by the terms
and conditions of our contract with Iron
Workers Local Union No. 10 that is effective
until March 31, 1981, and that covers all types
of construction work within the established
trade jurisdiction of Iron Workers Local No.
10, unless and until we give timely notice of
our intent to modify its terms and the Union
fails to request bargaining, or an impasse is
reached during bargaining over the proposed
change.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by the National Labor Relations Act.
WE WILL make Bill McGinnis, Pat McGin-
nis, and any other persons as may be identi-
fied, whole for any losses suffered by them be-
cause of our failure to honor and apply terms
of the collective-bargaining agreement referred
to above.
CARROTHERS CONSTRUCTION COM-
PANY, INC.
DECISION
STATEMENT OF THE CASE
DAVID G. HEII.LBRUN, Administrative Law Judge: This
case was heard by me in Kansas City, Kansas, on March
5 and 6, 1979, based on an amended complaint alleging
that Carrothers Construction Company, Inc., herein
called Respondent, violated Section 8(a)(1) and (5) of the
Act by unilaterally repudiating a certain collective-bar-
gaining agreement which was assertedly in effect with
Iron Workers Local Union No. 10, herein called the
Union.
Upon the entire record, my observation of the wit-
nesses, and consideration of all post-hearing briefs, I
make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
Respondent maintains its principal office and place of
business in Paola, Kansas, from which it is engaged in
the construction of sewage and water treatment plants,
annually purchasing goods and materials valued in excess
of $50,000 directly from outside Kansas, while annually
selling goods and services valued in excess of $50,000 di-
rectly to customers located outside Kansas. The Union
has offices in Kansas City, Missouri, where it maintains a
primary collective-bargaining relationship with the
Builders' Association of Missouri and otherwise general-
ly represents employees performing ironwork in various
counties of Missouri and Kansas. On these preliminary
facts, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that the Union is a labor organization
within the meaning of Section 2(5).
On March 18, 1966, Assistant Business Agent Allen
Thompson appeared at a jobsite of Respondent in Law-
rence, Kansas, and induced Superintendent Raymond
Smith to sign the following "Iron Workers-Contract
Stipulation:"
The undersigned employer acknowledging receipt
of a copy of the Collective Bargaining Agreement
presently in effect between the Builders' Associ-
ation of Kansas City and International Association
of Bridge, Structural and Ornamental Ironworkers,
Local 10, AFL-CIO and after negotiation and a
complete discussion of the facts and circumstances
involved and desiring and intending to be bound by
the prevailing wages and conditions in the area,
hereby agrees with the Union to be bound by the
terms of such collective bargaining agreement and
all subsequent collective bargaining agreements and
all fringe benefit agreements between the aforemen-
tioned parties. This stipulation, which is expressly
subject to the terms of the above agreements, shall
be valid and effective when approved by the Union,
and the Board of Trustees of the Mo-Kan Iron-
workers Welfare Fund and shall remain in effect
until three years from this date and at the expiration
of three years shall automatically renew itself for a
three-year period and at regular three-year intervals
176
CARROTHERS CONSTRUCTION COMPANY
thereafter, unless the employer gives written notice
of desire to terminate, no more than 60 days and no
less than 30 days prior to any such three-year anni-
versary date.
The Union was at that time party to a collective-bar-
gaining agreement with the Builders' Association of
Kansas City, and since then a series of multiyear con-
tracts have existed, the latest and current one being ef-
fective from September 12, 1977, until March 31, 1981.'
As with the earlier agreements, a jurisdictional article III
is present. This declares the current contract as extend-
ing to numerous Missouri and Kansas counties, including
for the latter State those of Douglas, Franklin, Leaven-
worth, and Shawnee. In further comparable fashion, the
present agreement contains as article IV a "jurisdiction
of work" clause, presuming to cover "all types of con-
struction work within the established craft jurisdiction of
the International Association of Bridge, Structural and
Ornamental Iron Workers." This clause continues with a
mechanism for resolving jurisdictional disputes, should
they occur with another union of the AFL-CIO Build-
ing and Construction Trades Department. The General
Counsel introduced a number of monthly remittance re-
ports showing Respondent to have paid employer contri-
butions for health and welfare, joint apprenticeship, and
pension-trust funds over the period 1974 to September
1977, in a manner not inconsistent with a 2-year associ-
ation agreement previously in effect until March 1974,
and with the current agreement.
In approximately March 1978, Respondent com-
menced the construction project that this case concerns.
Work to date on this water treatment plant in Ottawa,
Kansas (Franklin County), has consisted of excavation,
building and reinforcing of concrete forms, and pipeline
work. Kenneth Cummings, Respondent's construction
manager, had attended a prejob conference of several
construction trades. Discussion at this time resulted in
understandings that common labor on the job would be
paid about $5.10 an hour, labor installing rebars would
be paid $6.75, and various higher scales would apply to
operating engineers and carpenters. Cummings testified
that because the Ottawa job was one of which no gov-
ernment authority had set predetermined wage rates, it
was possible for Respondent within the terms of its mem-
bership in the Eastern Kansas Constructors Association
(EKCA) to set wage rates suitable for the labor market
area. Cummings added that Respondent had been a
member of this Association for at least 22 years, and
among the collective-bargaining agreements, to which it
was party by virtue of such membership, was one with
the Kansas Laborers' District Council, including a cer-
tain Laborers' Local Union No. 1290 which was listed
therein with geographical jurisdiction in Franklin
County, Kansas. That agreement further set forth its
scope in article III as covering "manual labor on the job
site," with general work definition, including that of
"heavy construction," that was expressly deemed to in-
clude "water supply projects, including treatment plants
and pump stations." The "work recognition" supplement
In 1974, the Builders' Association of Kansas City changed its name
to the Builders' Association of Missouri.
in this contract stated that "unloading, handling and car-
rying of concrete reinforcing bars to the panel in which
they are used, is the work of the Laborers."
About May 1, 1978, Thompson telephoned Cummings
to ask when he would be ready for ironworkers on the
Ottawa job.2 Cummings stated that he did not plan on
using them, because he had no contract with the Union.
Thompson insisted that an existing document had that
effect, and Cummings briefly checked his office files, re-
turning to the telephone to say that he could find noth-
ing on the point. The conversation ended with Thomp-
son saying he would send a copy of the 12-year-old con-
tract stipulation, which Cummings concedes was re-
ceived by mail.
On July 19, Thompson visited the Ottawa jobsite and
observed several people placing reinforcing, tying col-
umns and beams on the bank, and placing reinforcing in
the tanks. On the basis of this observation, he caused
picketing at the site, but this was discontinued within
about 2 weeks.
Willard McGinnis has been a member of the Union for
about 19 years, over which period he has installed rein-
forcing rods, structural steel, and precast, handrail orna-
mental iron and seating. Around May 1978, he had gone
to the jobsite and engaged in conversation with a person
named "Shorty" Hughes, who was identified as job su-
perintendent. McGinnis inquired of Hughes whether
ironworkers were going to be needed, and Hughes an-
swered that none would be hired "out of the local hall,"
but that other persons would be hired to "tie iron."3
McGinnis had immediately prior to this time been em-
ployed by Respondent on a water treatment plant job at
Tonganoxie (Douglas County), Kansas, after referral to
that job via the union hall. While on that job he had put
in reinforcing iron rods by "tying [such] steel" both
below ground and above ground, while paid a rate
equivalent or near to what was then effective under the
Union's contract.
In approximately June, Bill McGinnis, son of Willard,
and himself an ironworker for approximately 5 years, al-
though not a journeyman member of the Union, went to
the Ottawa jobsite and also spoke with Hughes. Bill
McGinnis testified that he was told the trade of iron-
worker was not needed, but that Hughes "was going to
hire men to tie the iron." Bill McGinnis offered to work
and was told to return later. On the first occasion of re-
turning, Hughes told Bill McGinnis that hiring of men
for the tying of iron would be "through the Laborers'
Hall" at $6.75 per hour and that Respondent had no con-
tract with the Union. Later, in a telephone conversation,
Hughes authorized Bill McGinnis to report for work
2 All dates hereafter are in 1978, unless shown otherwise.
3 1 find that in the course of the conversation between McGinnis and
Hughes, the latter did express the words "heavy construction" as justifi-
cation for why the Iron Workers contract claimedly did not apply. I dis-
credit McGinnis' contrary testimony, finding instead that his investiga-
tory affidavit, in which this passage appears, is the more reliable evi-
dence. McGinnis testified that, to his knowledge, the Union had never
signed a heavy construction contract with any party, and for this reason
it is unlikely the phrase would have stemmed from his participation as an
affiant unless actually once heard. In any event, such distinction is not
vital to resolution of the issue here
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after obtaining a work referral from Laborers' Local
1290. This was done, and Bill McGinnis worked thereaf-
ter on the jobsite for approximately 4 weeks by placing
reinforcing rod, tying it, and setting it in position. He tes-
tified that this was the "type of work" he had previously
performed while working for Respondent on other jobs
after referral from the Union, and while being paid at
scale.
Pat McGinnis is another son of Willard, who has also
worked as an ironworker for approximately 5 years,
though not a journeyman member of the Union. On or
about May 10, he had applied for a job at the Ottawa
site and spoken with Hughes. Hughes provided an appli-
cation form, and advised that the pay rate would be
$6.75 per hour for the performance of ironwork. Pat
McGinnis was hired about a week later and ultimately
cleared his employment with Laborers' Local 1290. His
duties on this job had consisted of making up mats with
reinforcing rods, setting them in place, making columns,
tying together rebar, and unloading structural steel off
trucks. Pat McGinnis had also been previously employed
by Respondent for this same type of work after referral
from the Union.
On September I, Joseph Moreland wrote to Cum-
mings as attorney for the Union. The letter contended
that "iron work necessary for completion of your current
engagement on the water-treatment plant at Ottawa
Kansas" was not being "compensated or benefited" in
accordance with the Union's current contract. The letter
continued by saying that the unterminated contract stipu-
lation of 1966 bound Respondent to this contract, and
demanded resolution of "the instant dispute" in accord-
ance with article XVII-arbitration. There being no
answer, Moreland wrote again on October 3 asking for a
reply. Cummings testified that it flustered him to receive
this followup letter, and, upon immediately ascertaining
that legal counsel was temporarily unavailable, he tele-
phoned Moreland to do little more than acknowledge the
communication. The two, who had never before spoken
by telephone, conversed further on the subject and both
agreed that Cummings eventually said that his Company
did not have an agreement with the Iron Workers, but
would not put this position in writing.
The General Counsel has advanced sufficient evidence
to prevail in this case since the essential fact, stripped of
all extraneous contentions, is that the 1966 contract stipu-
lation adequately suffices to bind Respondent, as succes-
sive collective-bargaining agreements are reached, to
cover the ironworker trade through association bargain-
ing. The 1974 organizational name change described
above is inconsequential to affect this conclusion. There
was total continuity from the Builders' Association of
Kansas City to the Builders' Association of Missouri, and
no significance is present merely because internal reasons
were present for the Association to modify its public
image. Further, the agreement was routinely signed by
Thompson at the time executed, and is shown to have
fulfilled in its only remaining condition to validity by the
signed acceptance on behalf of a welfare fund board of
trustees. Cummings testified that the work for which a
$6.75 hourly rate was paid at Ottawa involved unload-
ing, moving, and placing reinforcing bars. These are, of
course, typical tasks of the ironworker trade, and well
within any understanding of the term "established craft
jurisdiction" as used in the union contract. It is purely
specious for Respondent to argue that the EKCA agree-
ment applied essentially to "manual labor on the jobsite"
even assuming some overlap by the "work-recognition"
clause. The most telling point is that Respondent had
long and frequently adopted the union contract both as
to wage scale, fringe benefits, and source of personnel. 4
There is comparable lack of merit to Respondent's other
main contention that this case constitutes a jurisdictional
dispute between unions. There is simply no affirmative
evidence that this is so or that the Laborers were claim-
ing any tasks within the meaning of Section 8(b)(4)(D).
Contrarily, both Thompson and Moreland testified that a
spokesman for Local 1290 disclaimed this intention and,
more importantly, no agent of Respondent ever had the
traditional dilemma imposed. Cf. International Union of
Operating Engineers, Hoisting and Portable Local 126 and
16B (Hicks Construction Company, Inc.), 217 NLRB 19
(1975); Truck Drivers & Helpers Local No. 170, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (DeLucca Fence Company,
Inc.), 240 NLRB 644 (1979) (in which a "threat to picket
gave rise to the present proceedings"). While Local 1290
may have gained some windfall benefits in permit dues
from the overall situation, this does not elevate the cir-
cumstances to that of the bona fide jurisdictional dispute.
On this basis both branches of Respondent's defense fail,
and it is left without a justifiable answer to why the
union contract was not recognized in one of the specific
counties it covered.
The distinction between "building" and "heavy" con-
struction is similarly unavailing to Respondent, for the
chief reason that it has performed water treatment plant
construction in the past while acknowledging the union
contract through the payment of benefits, utilization of
the hiring hall, and recognition of scale wages.5 I ac-
knowledge this point, but reiterate that the fundamental
rationale of decision does not turn on how lightly the
parties dealt with each other over the years, but instead
on a pure legal conclusion that under contract law the
sufficiently authorized execution of a contract stipulation
must be given fair meaning and impact unless and until
timely termination. 6
4 I recognize that Respondent has contended certain jobs were com-
pensated at "predetermined rates," which was claimedly at or near that
of union scale. Although cautioned at the hearing to come forth with evi-
dence in this area, if believed relevant. Respondent has done nothing
more than elicit the suggestion of similarity between the two rates. Under
the circumstances, I am satisfied that each member of the McGinnis
family has, at times during 1976, 1977, and early 1978, been employed by
Respondent at wage scales precisely called for under the union contract
($10.35 prior to January 1, and $10.80 thereafter, as is material here)
Notably too, as quoted above, the union contract has plenary reach
by its coverage of al types of construction work.
Respondent's brief refers to its use of union (ironworker) members
"on occasion," which begs the fundamental question. Beyond this, and
Respondent's rejected defense based on Sec. 8(b)(4)(D). I glean several
contentions from the brief One is that the National Labor Relations
Board Regional Office has once previously dismissed this case, another is
that the Association has expanded so greatly as to change its essence, an-
other is that statutory or regulatory changes under the Davis-Bacon Act
Continued
178
CARROTHERS CONSTRUCTION COMPANY
Accordingly, I render a conclusion of law that Re-
spondent, by repudiating the union contract here in-
volved, has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 7
The Respondent, Carrothers Construction Company,
Inc., Ottawa, Kansas, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing to implement the current collective-bar-
gaining agreement with the Union, which is effective to
March 31, 1981, and covers all types of construction
work within the established craft jurisdiction of the
Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make Bill McGinnis, Pat McGinnis, and such other
persons as identifiably employed for a $6.75 hourly rate
at the Ottawa, Kansas, water treatment plant job, whole
for any losses suffered by them by reason of Respond-
ent's failure and refusal to honor and apply terms of the
collective-bargaining agreement referred to in paragraph
I(a) above. Such losses shall be computed as provided in
F. W Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records social, security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Ottawa, Kansas, jobsite, and its Paola,
Kansas, place of business, the attached notice marked
"Appendix." 8 Copies of said notice, on forms provided
by the Regional Director for Region 17, after being duly
signed by Respondent or its authorized representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
after 1966 explain the payment of fringe benefits, another is that the
Union has once elected an arbitration remedy so as to foreclose this
route, and a final one is that no showing of majority representation has
been proven among the employees utilized at the Ottawa job. For rea-
sons given above, these contentions, taken individually or collectively,
are unavailing.
7 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 find-
ings, 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 objections thereto
shall be deemed waived for all purposes.
8 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order. what
steps Respondent has taken to comply herewith.
SUPPLEMENTAL DECISION
DAVID G. HEIIBRUN, Administrative Law Judge: On
December 14, 1979, the National Labor Relations Board
issued an Order reopening the record of this proceeding
and remanding for further hearing on issues of "appro-
priate unit and whether the Union represented a majority
of the employees within that unit." Pursuant to further
notice, the remand was observed by conducting a hear-
ing in Kansas City, Kansas, on January 8, 1980, at which
all parties were represented by counsel. Upon the entire
record made,' and consideration of post-hearing briefs
filed only by the General Counsel and the Union (Charg-
ing Party), I make the following:
FINDINGS OF FACT AND AFFIRMATION OF PRIOR
CONCLUSIONS OF LAW
The originating "Iron Workers-Contract Stipulation"
was signed on a Friday of Respondent's payroll period
ending March 19, 1966. The Lawrence, Kansas, jobsite
on which ironworkers were then employed, and situated
in Douglas County, Kansas, utilized only James Morris-
sey, Dee Northrip, and Leroy Lelmkuhl for 40, 40, and
32 hours of work that week, respectively. At that point
in time Morrissey was a regular, paid-up member of the
Union, and had been such for at least 18 months follow-
ing his transfer from another local of the Iron Workers
International. 2 Lelmkuhl was also a dues-paying member
at the time, with his status actually originating by initi-
ation in 1956. The comparison of data based on Respond-
ent's monthly remittances to the Union's benefit funds
and the Union's membership records shows that in utili-
zation of ironworkers the persons so employed in the
years from 1966 until contract repudiation in 1978 were
also primarily members. 3
' Certain errors in the transcript are hereby noted and corrected
2 This is established by G.C. Exh. 15-HHH, one of many documents
reflecting direct payments into the Union b) journeymen ironworker In
actual use this and similar documents were modified from what their
format would appear to show, and as "outdated" were nevertheless reli-
able indicators of membership when reviewed in connection with orderly
and credible testimony of Eva Scott. office manager and secretary to the
business manager of Iron Workers Local 10. the Union herein
3 Respondent refused to produce validly subpenaed, relevant payroll
information for the period in question. The secondary data referred to is
summarized in the General Counsel's brief by the following passage.
The records referred to above establish, for example, that in 1967 the
Union was the majority representative each of the 11 months that
year that unit employees performed labor. Further, a numerical ma-
jority of employees employed by the Respondent designated the
Union as their representative regarding each month that the Re-
spondent employed employees in unit job classifications during the
years 1970, 1972. 1973 and 1976. Still further, the Union was the ma-
jority representative in every other year between 1966 and 1978
except 19h8 and 1977. Taken as a whole. approximately 70 percent
of the Respondent's unit employees during this time period. Acre
members of the Union
Continued
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pertinent subjects of appropriate unit and majority
may thus be readily resolved. A recognized construction
craft is presumptively valid and the geographical cover-
age, including as it does the Franklin County, Kansas,
jobsite in question, has remained undisturbed through
successively renewing Association contracts following
1966. Thus the appropriate unit is now, and since 1966
has been, one of all ironworkers employed on jobsites in
any county named by the multiemployer agreement to
which Respondent is bound. With evidence showing that
the bargaining relationship began by the Union having a
majority on the project, complications of an originating
8(f) type contract are not present. It is Respondent's
burden to show existence of such more limited character-
istic, and it has not even attempted to do so. By majority
status attaching to the original bargaining relationship, a
presumption of its continuation properly applies to pros-
pective jobsites such as the new one out of which this
case arose. Notably, the Association agreements from
In view of Respondent's unwarranted withholding of evidence on the
specific issues covered by this remand, I accept the General Counsel's
summary as a reliable substitute, and infer that actual records of employ-
ment would reflect adversely to Respondent's interests. Cf. Bannon Mills.
Inc., 146 NLRB 611 (1964).
1966 to the present contain a union-security clause re-
quiring as a condition of employment that members of
the Union shall remain such in good standing. The situa-
tion contrasts well with DAngelo & Kahn, Inc., 248
NLRB 396 (1980), in which the Board found no viola-
tion in a contractor's refusal to apply terms and condi-
tions of a collective-bargaining agreement previously ex-
ecuted at another construction site where this location
was within the jurisdiction of a sister local and, notwith-
standing that dues and contributions to employee benefit
funds were retroactively remitted to the claiming local,
the individuals actually employed at the jobsite were
themselves only members of the sister local.
Accordingly, I affirm my original Decision in this
matter, 4 and again recommend the Order and notice to
employees as formulated June 1, 1979.
4 I shall not recommend a remedial interest rate of 9 percent on back-
pay, as supplementally requested by the General Counsel, because it is
inappropriate to do so in the light of the regency and thoroughness in
and by which the Board examined this subject and chose the "adjusted
prime rate" principle of Florida Steel Corporation, 231 NLRB 651 (1977)
See tansen Cakes, Inc., 242 NLRB 472 (1979); Engineered Apparel, ncor-
porared, 243 NLRB 66 (1979); cf Equal Employment Opportunity Comms-
ion v. Pacific Press Publshing A.ssociation, 21 FEP Cases 848 (1979).
180