J & S Drywall

National Labor Relations Board - Board Decisions

May 24, 1991

303 N.L.R.B. 24 (N.L.R.B. 1991)

24
303 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
Contrary to the judge’s findings at fns. 10 and 16, Union Business Agent
James Alderson testified that the Union moved its offices from East Sunshine
Street to East Meadowmere Street, not from East Meadowmere to East Sun-
shine. This error does not affect our decision.
2 We agree, for the reasons stated by the judge, that the Board has jurisdic-
tion over the Respondent under the Board’s indirect inflow and outflow stand-
ard. We therefore find it unnecessary to pass on the alternative basis relied
on by the judge.
3 The General Counsel cross-excepts to the judge’s limiting the remedy to
those persons whom the General Counsel proved to be bargaining unit em-
ployees. We agree that the judge improperly limited the remedy and shall
leave to compliance the identity of the unit employees subject to the remedial
order.
We leave to the compliance stage the question of whether the Respondent
must pay any additional amounts into the benefit funds to satisfy our ‘‘make-
whole’’ remedy. Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
We shall modify the unit description to conform to the unit alleged in the
complaint and established by the evidence.
Finally, we shall modify the judge’s recommended Order and issue a new
notice to correct inadvertent errors and more closely address the violations
found.
4 On matters as to which the judge made specific credibility resolutions, the
judge credited Alderson over Durham, in part on demeanor grounds.
Jerry Durham Drywall, d/b/a J & S Drywall and
International Brotherhood of Painters & Allied
Trades, Local 203. Case 17–CA–13354
May 24, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, AND OVIATT
On March 1, 1989, Administrative Law Judge Wil-
liam A. Pope II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed cross-exceptions and a brief in
support of the cross-exceptions and in answer to the
Respondent’s exceptions. The Respondent also filed an
answering brief to the General Counsel’s cross-excep-
tions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions2 and to
adopt the recommended Order as modified.3
We agree with the judge that the complaint is not
barred by Section 10(b) because we find that the Re-
spondent did not, more than 6 months before the
Union’s filing of the unfair labor practice charge, ex-
pressly repudiate the contract in clear and unequivocal
terms. A & L Underground, 302 NLRB 467, 468
(1991). The Respondent’s violations of its contractual
and statutory obligations before that time appeared,
rather, to take the form of failures to comply with the
contractual terms.
The judge made no specific finding on this issue be-
cause he decided this case before issuance of our deci-
sion in A & L Underground, when Board precedent
could arguably be read as making it immaterial, for
purposes of deciding the 10(b) limitations issue,
whether a party had clearly repudiated an agreement
more than 6 months before the filing of a charge alleg-
ing unlawful breaches or repudiation of that agreement.
We see no need, however, to remand for such a find-
ing. Contrary to the Respondent’s submission, even if
we consider what the Respondent claims is an admis-
sion by James Alderson, the business agent of the
Charging Party Union, the record does not establish
that a sufficiently clear repudiation occurred outside
the 10(b) period to bar litigation of the charges on
which the complaint was issued.
The Respondent essentially relies on Alderson’s af-
firmative answer, on cross-examination, to the question
whether, on August 13, 1986, he ‘‘felt’’ that the Re-
spondent had ‘‘repudiated’’ the contract. Other testi-
mony, however, by both Alderson and by the Re-
spondent’s owner, Jerry Durham, establishes a context
indicating that Alderson may have been using the term
‘‘repudiated’’ only in the sense of ‘‘ignoring’’ or
‘‘failing to comply with’’ the agreement. The record
does not establish that at any time prior to the begin-
ning of the 10(b) period (Sept. 27, 1986), Durham
made statements manifesting a clear and unequivocal
repudiation of the agreement he had signed July 29,
1985, as distinguished from statements manifesting an
intent not to engage in work that would be subject to
the agreement.
Alderson, who was generally credited by the judge,4
testified that in the summer of 1986 he had encoun-
tered Durham on several occasions doing work on a
hospital construction project to which the collective-
bargaining agreement applied. Alderson stated that he
had reminded Durham that he had signed a collective-
bargaining agreement, but Durham had contended that
the project was a ‘‘non-union job’’ because the general
contractor and another contractor on the site from
whom Durham had obtained the work did not have
union contracts. There was then a brief discussion in
which Alderson explained that this did not make the
agreement that Durham had signed inapplicable to the
work. Alderson further testified that Durham subse-
quently had asked him about the bond requirement and
other cost implications of the agreement and had stated
that he would ‘‘get off the job’’ and possibly ‘‘have
to get off of commercial work altogether.’’ Durham
did not leave the job, and on August 13 the Union
picketed Durham and another contractor. Alderson tes-
tified that an exception to the agreement’s no-strike
clause permitted picketing for failure to make trust
fund contributions.
In sum, a reasonable person could have interpreted
Durham’s remarks as an indication that he had found
25J & S DRYWALL
5 While the agreement does not have clear jurisdictional provisions other
than those indicating geographical coverage, art. 26(b) suggests that individ-
uals such as Durham are covered only when they are performing work on
commercial or industrial projects.
6 Member Cracraft agrees that the record does not establish that there was
a clear and unequivocal contract repudiation outside the 10(b) period. In so
finding, she relies on the Respondent’s inquiry made the day after Durham,
the Respondent’s owner, told the Union that he did not intend to pay union
dues, that he was a nonunion contractor and that he would not be working
on union jobs. At the union hall the following day, Durham asked Union Busi-
ness Agent Alderson what the Respondent needed to charge in order to meet
the Union’s wage and benefit rates and what needed to be done to meet the
Union’s bond requirements. This inquiry was clearly and unequivocally incon-
sistent with a desire to repudiate the contract. Under these circumstances,
Member Cracraft finds it unnecessary to pass on whether the Respondent’s
statements prior to its inquiry, standing alone, would suffice to establish a
clear and unequivocal express contract repudiation.
Member Devaney agrees that the complaint in this case is not barred by
Sec. 10(b). The bargaining agreement was effective by its terms until March
31, 1987. The charge was filed March 23, 1987, during the term of the agree-
ment. Thus, for the reasons stated in his dissenting opinion in A & L Under-
ground, above, Member Devaney would find the complaint here not to be
time-barred.
compliance with the collective-bargaining agreement
too expensive and that he contemplated avoiding liabil-
ity under the agreement simply by not having his com-
pany do work covered by it in the future.5 Given the
apparent misunderstanding between Durham and
Alderson about what constituted ‘‘union jobs,’’ even
Durham’s own claim about a statement he assertedly
had made to Alderson in August 1986 supports this
view. In a pretrial affidavit taken by Durham’s attor-
ney, and reaffirmed by Durham at the hearing, Durham
claimed that he told Alderson that it was impossible
for him to obtain a bond or worker compensation in-
surance and that ‘‘therefore I did not intend to hire any
union employees or take on any union jobs or be
bound by his contract.’’ Under all the circumstances,
this simply does not rise to the level of an unequivocal
total contract repudiation. Compare A & L Under-
ground, above, 469 (letter expressly repudiating agree-
ments). We therefore find that the unfair labor practice
charge filed on March 25, 1987, was timely.6
ORDER
The National Labor Relations Board orders that the
Respondent, Jerry Durham Drywall, d/b/a J & S
Drywall, Mansfield, Missouri, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to recognize the International
Brotherhood of Painters & Allied Trades, Local 203,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All employees of Respondent performing work
within the trade of the Painters & Allied Trades,
including all sandblasters, tapers, spraymen,
highmen, pressure rollers, paperhangers on com-
mercial job projects located within [the geo-
graphic jurisdiction of the collective-bargaining
agreement], excluding all office clerical employ-
ees, guards and supervisors as defined in the Act.
(b) Failing or refusing to accept, give effect to, and
implement the terms and conditions of the collective-
bargaining agreement between the Respondent and the
Union, for the period September 27, 1986 through
March 31, 1987.
(c) Failing or refusing to make payments to the
Painters Local 203 Apprenticeship Training Fund and
its Health and Welfare Fund, as provided in the collec-
tive-bargaining agreement, for the period September
27, 1986 through March 31, 1987.
(d) Failing or refusing to make payments to the
Painters Local 203 Pension Fund, as provided in the
collective-bargaining agreement, for the period Sep-
tember 27, 1986 through March 31, 1987.
(e) Failing or refusing to withhold and remit to the
Union authorized dues from unit employees’ pay-
checks, as provided in the collective-bargaining agree-
ment, for the period September 27, 1986 through
March 31, 1987.
(f) Failing or refusing to pay its unit employees the
hourly wage scale established for their classifications
in the bargaining agreement, for the period September
27, 1986 through March 31, 1987.
(g) Failing or refusing to pay social security taxes
for its employees, for the period from September 27,
1986 through March 31, 1987.
(h) In any like or related manner interfering with,
restraining, 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) Recognize the International Brotherhood of
Painters & Allied Trades, Local 203, as the exclusive
representative of the Respondent’s unit employees,
with respect to rates of pay, wages, and other terms
and conditions of employment, for the period Septem-
ber 27, 1986 through March 31, 1987.
(b) Give retroactive effect to all terms and condi-
tions of the collective-bargaining agreement, for the
period September 27, 1986 through March 31, 1987.
(c) Make whole, in the manner described in the rem-
edy section of the judge’s decision, all unit employees
for any loss of pay and benefits, including payment of
social security taxes, which they may have suffered by
reason of the Respondent’s refusal to abide by and
give effect to the collective-bargaining agreement, for
the period September 27, 1986 through March 31,
1987, with interest.
(d) Make whole the appropriate union trust funds for
any failure to make the contributions required by the
collective-bargaining agreement, for the period Sep-
tember 27, 1986 through March 31, 1987.
(e) Pay to the Union all authorized dues which
should have been deducted and remitted to the Union
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
under the bargaining agreement, for the period Septem-
ber 27, 1986 through March 31, 1987, with interest.
(f) Preserve and, on 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
records necessary to analyze the amounts due under
the terms of this Order.
(g) Post at the Respondent’s place of business in
Mansfield, Missouri, copies of the attached notice
marked ‘‘Appendix.’’7 Copies of the notice, on forms
provided by the Regional Director for Region 17, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to recognize the Inter-
national Brotherhood of Painters & Allied Trades,
Local 203, as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit:
All employees of Respondent performing work
within the trade of the Painters & Allied Trades,
including all sandblasters, tapers, spraymen,
highmen, pressure rollers, paperhangers on com-
mercial job projects located within [the geo-
graphic jurisdiction of the collective-bargaining
agreement], excluding all office clerical employ-
ees, guards and supervisors as defined in the Act.
WE WILL NOT fail or refuse to accept, give effect to,
and implement the terms and conditions of our collec-
tive-bargaining agreement with the Union, for the pe-
riod September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to make payments to the
Painters Local 203 Apprenticeship Training Fund and
its Health and Welfare Fund, as provided in the collec-
tive-bargaining agreement, for the period September
27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to make payments to the
Painters Local 203 Pension Fund, as provided in the
collective-bargaining agreement, for the period Sep-
tember 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to withhold and remit
to the Union authorized dues from unit employees’
paychecks, as provided in the collective-bargaining
agreement, for the period September 27, 1986 through
March 31, 1987.
WE WILL NOT fail or refuse to pay our unit employ-
ees the hourly wage scale, as established for their clas-
sifications in the bargaining agreement, for the period
September 27, 1986 through March 31, 1987.
WE WILL NOT fail or refuse to pay social security
taxes for our employees, for the period September 27,
1986 through March 31, 1987.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize the International Brotherhood of
Painters & Allied Trades, Local 203, as the exclusive
representative of our employees in the appropriate unit,
with respect to rates of pay, wages, and other terms
and conditions of employment, for the period Septem-
ber 27, 1986 through March 31, 1987.
WE WILL give retroactive effect to all terms and
conditions of the collective-bargaining agreement, for
the period September 27, 1986 through March 31,
1987.
WE WILL make whole all unit employees for any
loss of pay and benefits, including payment of social
security taxes, which they may have suffered by reason
of our refusal to abide by and give effect to the collec-
tive-bargaining agreement, for the period September
27, 1986 through March 31, 1987, with interest.
WE WILL make whole the appropriate union trust
funds for our failure to make the contributions required
by the collective-bargaining agreement, for the period
September 27, 1986 through March 31, 1987.
WE WILL pay to the Union all authorized dues
which should have been deducted and remitted to the
Union under the bargaining agreement, for the period
27J & S DRYWALL
1 On October 20, 1987, the Board denied Respondent’s Motion for Summary
Judgment, dated October 13, 1987.
2 It appears from testimony during the hearing that J & S Drywall was
somewhat interchangeably referred to as Jerry Durham Drywall.
September 27, 1986 through March 31, 1987, with in-
terest.
JERRY DURHAM DRYWALL, D/B/A J & S
DRYWALL
Lyn R. Buckley, Esq., for the General Counsel.
Donald W. Jones, Esq., Steven E. Marsh, Esq., of Spring-
field, Missouri, for the Respondent.
James W. Alderson, of Springfield, Missouri, for the Charg-
ing Party.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In a
complaint, dated September 18, 1987, the Acting Regional
Director for Region 17 of the National Labor Relations
Board alleged that the Respondent, Jerry Durham Drywall,
d/b/a J & S Drywall, a (sole) proprietorship owned by Jerry
Durham, violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act) by failing to abide by or con-
tinue in full force and effect all of the terms and conditions
of a collective-bargaining agreement.1 The charge in this
case was filed by the International Brotherhood of Painters
& Allied Trades, Local 203 (the Union or Local 203) on
March 25, 1987. Trial took place between December 7,1987,
and December 10, 1987, in Springfield, Missouri, before Ad-
ministrative Law Judge William A. Pope II.
I. BACKGROUND
Operating under the name of J & S Drywall, Mansfield,
Missouri,2 Jerry Durham is engaged in the business of finish-
ing drywall. Durham has operated his business for approxi-
mately 5 years. During 1986 and 1987, J & S Drywall, as
a subcontractor of Ozark Interiors, performed drywall finish-
ing work on a number of commercial remodeling and con-
struction jobs, most of which were located in the Springfield
and Joplin, Missouri areas. Jerry Durham worked on J & S
Drywall’s jobs, himself, and hired other drywall finishers, as
needed, to help him complete the jobs on time. The individ-
uals hired by Durham to work on J & S Drywall’s jobs were
paid as independent contractors for tax purposes, and each of
them received a 1986 Internal Revenue Service form 1099-
MISC from J & S Drywall, listing the money they received
from J & S Drywall that year for their work as ‘‘Non-
employee compensation.’’ The parties stipulated that on or
about August 13, 1986, the Union picketed the St. John’s
Hospital jobsite in Springfield, Missouri, where the Respond-
ent was working, in part because of a labor dispute between
the Union and the Respondent. The parties further stipulated
that on or about April 16, 1987, the Union picketed the Holi-
day Inn construction site in Springfield, Missouri, where Re-
spondent was working, in part because of a labor dispute be-
tween the Union and the Respondent.
II. ISSUES
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act, by en-
gaging in the the following unfair labor practices:
Since on or about September 27, 1986, the Respond-
ent has failed and refused to abide by or continue in
full force and effect all the terms and conditions of a
collective-bargaining agreement between the Respond-
ent and the Union, entered into on or about July 29,
1985, and effective by its terms to March 31, 1987.
A. General Counsel’s Theory of the Case
General Counsel argues that the evidence shows that on
July 29, 1985, Jerry Durham, the owner of J & S Drywall,
the Respondent, handed James Alderson, the business rep-
resentative of Local 203, International Brotherhood of Paint-
ers and Allied Trades, two signed and dated copies of a col-
lective-bargaining agreement between the Respondent and
Local 203. Alderson signed both copies of the agreement on
behalf of Local 203, and returned one signed copy to Dur-
ham. The term of the agreement was from July 29, 1985, to
March 31, 1987. Prior to signing the agreement, Jerry Dur-
ham and Brad Dunbar, who did drywall finishing work for
J & S Drywall, came to Local 203’s office and made down
payments on the initiation fees and dues required for mem-
bership in Local 203. Citing Section 8(f) of the Act, and
John Deklewa & Sons, 282 NLRB 1375 (1987), General
Counsel asserts that the Respondent is engaged in the con-
struction industry, and that the collective-bargaining agree-
ment is enforceable regardless of whether or not a majority
of Respondent’s employees had chosen the Union as their
collective-bargaining representative.
There is no dispute, states the General Counsel, that the
Respondent did not pay anything into Local 203’s fringe
benefit funds, and failed to pay union dues. Although the Re-
spondent called the drywall finishers who worked on J & S
Drywall’s jobs independent contractors, and did not deduct
income taxes or pay social security for them, in fact his
workers were employees, as defined by the Board. The
record shows, argues the General Counsel, that Jerry Durham
hired workers for each job, set their rate of pay, directed
them where to work and when to be there, set priorities on
the jobs, and monitored the work in progress and controlled
the result. Unlike independent contractors, the workers had
no entrepreneurial interest in their working arrangements, did
not exercise independent judgment, and took no risks in
order to increase profits. Thus, says the General Counsel, the
workers were employees of J & S Drywall, and not inde-
pendent contractors. As employees, the collective-bargaining
agreement to which J & S Drywall was a party was applica-
ble to them.
The General Counsel asserts that the evidence of records
shows that the Respondent engaged in interstate commerce
and that the Board has jurisdiction in this case. During the
period from June 1, 1986, to June 1, 1987, the Respondent
performed over $50,000 worth of work for Ozark Interiors,
which was engaged in interstate commerce. Further, on sev-
eral of its jobs, the Respondent became involved in labor dis-
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
putes which could or did have a significant impact on other
employers who were engaged in interstate commerce. Gen-
eral Counsel cites Shore v. Building Trades Council, 173
F.2d 678 (3d Cir. 1949), for the proposition that Congress
has the power to regulate labor practices in industries, such
as the construction industry, which are themselves dependent
upon interstate commerce.
General Counsel denies that this proceeding is barred by
Section 10(b) of the Act. The Respondent’s conduct in 1986
did not put the Union on notice that the Respondent intended
to continue to perform unit work without applying the terms
of the collective-bargaining agreement. General Counsel says
that it is well settled that the 10(b) period does not begin to
run until the aggrieved party has clear and unequivocal no-
tice of conduct constituting an unfair labor practice. The Re-
spondent’s refusal to abide by the terms of the collective-bar-
gaining agreement in the summer of 1986 did not put Local
203 on notice that the Respondent had repudiated the agree-
ment, because the Respondent stated that it would not in the
future perform commercial jobs. Furthermore, asserts the
General Counsel, each refusal of the Respondent to abide by
the terms of the agreement constituted a separate violation of
the Act.
The appropriate remedy in this case, asserts the General
Counsel, is an order that the Respondent not repudiate the
collective-bargaining agreement and withdraw recognition
from the Union during the term of a valid collective-bargain-
ing agreement, that the Respondent make unit employees
whole for any loss of wages or benefits that they suffered
because of Respondent’s failure to abide by the collective-
bargaining agreement from September 27, 1986, to March
31, 1987, and that Respondent make whole unit employees
by making contributions into the Union’s Health and Welfare
Fund, Pension Fund, and Apprenticeship Training Fund, as
required by the collective-bargaining agreement, and that an
appropriate notice be posted.
B. Respondent’s Theory of the Case
Respondent asserts that the charge and complaint in this
case are barred by operation of Section 10(b) of the Act. Ac-
cording to the Respondent, even if he entered into a valid
collective-bargaining agreement on July 29, 1985, he never
implemented the agreement, and any charge or complaint
based on the agreement is barred by the 6-month statute of
limitations (Sec. 10(b)), because the charge was not filed
until March 25, 1987. Respondent argues that it is well set-
tled that where the initial refusal to comply with the terms
of a collective-bargaining agreement occurred more than 6
months prior to the filing of a charge, the charge is too late.
Here, says the Respondent, the Union knew in July 1986 that
the Respondent was not keeping up his end of the collective-
bargaining agreement. Furthermore, contends the Respondent,
the ‘‘continuing’’ violation theory is inapplicable in this case,
because there is no evidence of a demand and refusal to bar-
gain within the 10(b) period (between Sept. 25, 1986, and
Mar. 25, 1987).
In any event, argues the Respondent, there was never a
valid agreement between the Respondent and Local 203, be-
cause there was never a ‘‘meeting of the minds.’’ Jerry Dur-
ham acknowledges that there were discussions between him
and James Alderson about the Respondent entering into a
collective-bargaining agreement, but asserts that he withdrew
his offer to become a union contractor because he was un-
able to obtain insurance and a bond, which were conditions
precedent to becoming a union contractor.
In addition to the fact that there was never a ‘‘meeting of
the minds,’’ says the Respondent, there is no valid contract,
because the Union never communicated to him its acceptance
of his offer to become a union contractor. Consistent with
this theory, the Union never acted as though it believed it
had a contract. For instance, no grievances were ever filed
under the contract, and the Union engaged in organizational
picketing against the Respondent, something which would
have been unnecessary if the Union believed it already had
a collective-bargaining agreement with the Respondent. Fur-
ther, Business Agent Alderson never reported to the trustees
of the fringe benefits funds that Respondent had failed to
make payments to the funds.
Moreover, argues the Respondent, even if he had entered
into a collective-bargaining agreement with Local 203, as al-
leged, the contract would be illegal and void, because he as-
sisted one of his employees, Brad Dunbar, in joining the
Union as a member. In this regard, says the Respondent,
Business Agent Alderson told him he could take his em-
ployee, Brad Dunbar, to the Union’s office, and sign him up
as a member of the Union. The evidence shows that Durham
and Dunbar became members of Local 203 on July 29, 1985,
the same day Durham allegedly signed a collective-bargain-
ing agreement with Local 203. Under these circumstances,
the agreement is void because of unlawful assistance by an
employer to a union.
Respondent further argues that while Section 8(f) author-
izes prehire agreements in the construction industry, it does
not permit a construction contractor and a union of construc-
tion employees to enter into a collective-bargaining agree-
ment where, as here, the majority of the existing employees
of the employer are not represented by the union.
The Respondent argues that retroactive application of the
new principles announced by the Board in John Deklewa &
Sons, 282 NLRB 1375 (1987), violates his rights to due
process and freedom of choice guaranteed under Section 7 of
the Act. Durham points out that at the time he repudiated the
collective-bargaining agreement in 1986, such repudiation
was lawful under Board and court law, even assuming that
an 8(f) agreement then existed. The Respondent concludes
that constitutional principles indicate that a vested defense
should not be retroactively taken away, and new liabilities
should not be retroactively created.
The Respondent further asserts that the Board does not
have jurisdiction in this case, because there is no evidence
of any interstate transactions by Jerry Durham, or that Jerry
Durham’s business had any affect on interstate commerce.
Durham’s business is a sole proprietorship, which is local in
nature. Respondent denies that there is any evidence that his
business did $50,000 or more annually in business with any
person or company, and under such circumstances, jurisdic-
tion should not be asserted by the Board. The indirect inflow
and outflow standards do not apply to J & S Drywall, asserts
the Respondent, because it did not do $50,000 worth of busi-
ness in a calendar year with a person or business engaged
in interstate commerce.
Finally, the Respondent asserts that it did not have any
employees during the period from September 27, 1986,
through March 31, 1987, and, therefore, it had no duties
29J & S DRYWALL
3 Sec. 2(9) of the Act defines the term ‘‘labor dispute’’ as ‘‘any controversy
concerning terms, tenure or conditions of employment, or concerning the asso-
ciation or representation of persons in negotiating, fixing, maintaining, chang-
ing, or seeking to arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of employer and em-
ployee.’’
4 ‘‘For the purposes of applying this standard, direct outflow refers to goods
shipped or services furnished by the employer outside the State. Indirect out-
flow refers to sales of goods or services to users meeting any of the Board’s
jurisdictional standards except the indirect outflow or indirect inflow standard.
Direct inflow refers to goods or services furnished directly to the employer
from outside the State in which the employer is located. Indirect inflow refers
to the purchase of goods or services which originated outside the employer’s
State but which he purchased from a seller within the State who received such
goods or services from outside the State. In applying this standard, the Board
will adhere to its past practice of adding direct and indirect outflow, or direct
and indirect inflow. It will not add outflow and inflow.’’ Siemons Mailing
Service, supra, 122 NLRB at 85.
under the alleged collective-bargaining agreement. The Re-
spondent contends that all of the persons who worked for it
during that period were independent contractors, rather than
employees. Respondent asserts that the evidence shows that
80 percent of drywall workers simply walk on the jobsite,
looking for work. He asks them if they have their own tools,
and tells them the rate of pay per square foot. Some of the
drywall workers hire their own helpers. Durham asserts that
he only uses experienced subcontractors so that he will not
have to supervise them or control the manner and means by
which they perform their work. According to Durham, he
shows the workers where to start working, but does not stay
to supervise or direct them.
III. FINDINGS AND CONCLUSIONS
a. Jurisdiction
Section 10(a) of the Act empowers the Board ‘‘to prevent
any person from engaging in any unfair labor practice (listed
in Section 8) affecting commerce.’’ As defined in Section
2(7), ‘‘the term ‘affecting commerce’ means in commerce, or
burdening or obstructing commerce or the free flow of com-
merce, or having led or tending to lead to a labor dispute
burdening or obstructing commerce or the free flow of com-
merce.’’ As defined in Section 2(6), ‘‘the term ‘commerce’
means trade, traffic, commerce, transportation, or commu-
nication among the several States . . . .’’
As stated by the Supreme Court in NLRB v. Fainblatt, 306
U.S. 601, 604–605 (1939), ‘‘an employer may be subject to
the National Labor Relations Act although not himself en-
gaged in [interstate] commerce.’’ ‘‘The power of Congress
extends to the protection of interstate commerce from inter-
ference or injury due to activities which are wholly intra-
state.’’
In general, the Board’s jurisdiction extends to ‘‘labor dis-
putes’’ ‘‘affecting’’ interstate commerce.3 Congress has the
power to regulate interstate commerce, regardless of the vol-
ume. NLRB v. Fainblatt, supra, 306 U.S. at 606. Congress
did not set any limitation on the Board’s jurisdiction based
on the volume of interstate commerce involved, other than
the inference that it be more than that to which the courts
would apply the maxim de minimis. NLRB v. Fainblatt,
supra, 306 U.S. at 606–607. The Board, however, has set
standards concerning the minimum annual dollar volume of
certain categories of businesses which must be exceeded be-
fore it will assert jurisdiction. For nonretail enterprises, such
as the Respondent’s business, the gross outflow or inflow
across state lines must be at least $50,000, regardless of
whether such outflow or inflow is regarded as direct or indi-
rect. Siemons Mailing Service, 122 NLRB 81, 83–84 (1958),
supp., 124 NLRB 594 (1959).’’4
It is well established that ‘‘what affects the building indus-
try in a given community affects interstate commerce.’’
Shore v. Building & Construction Trades Council, 173 F.2d
678, 681 (3d Cir. 1949) (in which it was held that while one
small work stoppage in the building industry may have no
immediately perceptible effect on interstate commerce, many
such stoppages will have such effect, and, therefore, Con-
gress may, through its power to regulate what affects inter-
state commerce, regulate labor practices in industries which
are themselves dependent on interstate commerce.
The jurisdictional issues in this case are, what jurisdic-
tional standard must the Respondent meet before the Board
will assert jurisdiction, and does the evidence show that his
business met that standard. The Respondent is not engaged
in retail trade and does not sell a product. The Respondent
sells a service to the construction industry, specifically
drywall finishing. Clearly, therefore, the jurisdictional stand-
ard which the Respondent must meet before the Board will
assert jurisdiction is the standard applicable to nonretail en-
terprises, as stated above.
The Board has said that ‘‘its jurisdictional criteria ex-
pressed in terms of annual dollar volume of business do not
literally require evidentiary data respecting any certain 12-
month period of operation.’’ Reliable Roofing Co., 246
NLRB 716 fn. 1 (1979), citing Mine Workers District 2
(Mercury Mining), 96 NLRB 1389, 1390–1391 (1951). In
Reliable Roofing Co., supra, the Board found jurisdiction
based on the employer’s most recent complete fiscal year
preceding the unfair labor practices. The Board has also ap-
proved the use of the last full calendar year preceding the
year in which the alleged unfair labor practices occurred, and
the most recent calendar year preceding the year of the hear-
ing and decision. Reliable Roofing Co., supra, 246 NLRB at
716 fn. 1, citing Acme Equipment Co., 102 NLRB 153, 161
(1953), and Aroostook Federation of Farmers, 114 NLRB
538 (1955). In the same case, the Board cited with approval
the administrative law judge’s decision in Blake’s Res-
taurant, 230 NLRB 27, 28 (1977), in which the administra-
tive law judge stated that the Board could rely on the experi-
ence of an employer during the most recent calendar or fiscal
year, or the 12-month period immediately preceding the hear-
ing. In Idaho State District Court, 164 NLRB 95, 96 (1967),
also cited by the Board in Reliable Roofing Co., supra, the
Board said it would have asserted jurisdiction even though
the employer’s gross volume fell below the required amount
in ‘‘‘the year the dispute arose’ involving picketing and de-
creased sales.’’
The General Counsel contends that Respondent met the
$50,000 jurisdictional test, because he performed over
$50,000 worth of work for Ozark Interiors, which is engaged
in interstate commerce, during the period from June 1, 1986,
to June 1, 1987. The General Counsel further asserts that the
Respondent was involved in a labor dispute which affected
commerce, on two occasions when the Union picketed
jobsites where the Respondent was working. The Respondent
acknowledges that the Respondent did $23,849.92 worth of
business with Ozark Interiors in 1986, and $41,480.41 worth
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In 1986, Ozark Interiors, a nonretail construction enterprise doing business
in Missouri, had an annual direct inflow of goods across state lines of at least
$50,000, and, therefore its operations satisfy the Board’s jurisdictional stand-
ards. In 1986, Ozark Interiors purchased $97,238 worth of construction sup-
plies, tools, and equipment from suppliers outside the State of Missouri. Ozark
Interiors did not perform any work outside the State of Missouri in 1986; how-
ever, in 1986 it did approximately $2,924,347 in business within the State of
Missouri for public utilities, transit systems, newspapers, health care institu-
tions, broadcast stations, commercial buildings, education institutions, and re-
tail concerns. Its volume of business in 1987, through the date of hearing, De-
cember 7, 1987, was $2,493,101 and included construction and remodeling
jobs in Missouri, Arkansas, and Kansas.
of business in 1987, but disputes that the Respondent did
$50,000 worth of business in any one year, or that he was
involved in interstate commerce.
I find that the Board has jurisdiction in this case, for either
one of two reasons. First, the Respondent, while not itself
engaged in interstate commerce, is involved in the construc-
tion industry, which is dependent on interstate commerce and
is subject to regulation under the Act, and furnished services
valued in excess of $50,000 to Ozark Interiors, a firm whose
operations satisfy the Board’s jurisdictional standards. Sec-
ond, the Respondent was involved in a labor dispute which
affected interstate commerce through picketing by the Charg-
ing Party Union which shut down two major constructions
projects which were involved in interstate commerce. Each
of the projects was shut down by picketing for 1 day.
Contrary to Respondent’s assertion, the Board’s exercise
of jurisdiction is not dependent on an employer’s volume of
business during any one calendar year. It is well within the
scope of the Board’s decisions to base jurisdiction on a 12-
month period which includes the date on which the charge
was filed. In this case there is financial evidence in the
record of this proceeding covering the period from June 1,
1986, through May 31, 1987, a 12-month period which in-
cludes the filing of the charge in this case on March 25,
1987, showing that Respondent furnished services valued in
excess of $50,000 in a 12-month period of time to Ozark In-
teriors, a higher level construction industry subcontractor
who was engaged in interstate commerce.5 Respondent’s bil-
lings to Ozark Interiors between June 2 and December 31,
1986, for drywall finishing work performed by the Respond-
ent for Ozark Interiors on various construction or remodeling
projects, amounted to approximately $23,157. During 1987,
the Respondent did drywall finishing work for Ozark Interi-
ors, amounting to $41,480.41, of which at least $35,000 was
for Respondent’s work on the Holiday Inn construction
project, which Respondent completed in May 1987. Thus,
during the 12-month period, Respondent met the Board’s ju-
risdictional standard by furnishing services valued in excess
of $50,000 to a construction industry subcontractor whose
operations in interstate commerce met the Board’s standards.
The labor dispute between the Respondent and the Charg-
ing Party led to two work stoppages on construction projects
for which DeWitt and Associates was the general contractor
and Ozark Interiors was a subcontractor. The Respondent, in
turn, was a subcontractor of Ozark Interiors on these
projects. The first project was extensive remodeling and con-
struction at St. John’s Hospital, Springfield, Missouri, which
took place over the period from January 1986 through De-
cember 1987. The total value of DeWitt and Associates’ jobs
at St. John’s Hospital was approximately $8,178,489. The
Respondent was a subcontractor of Ozark Interiors on the
Lithotripter job (part of the St. John’s Hospital job) in Au-
gust 1986. The total cost of that job was $103,864. The sec-
ond project was the construction of a new Holiday Inn in
Springfield, Missouri, which took place between February
1986 and June 1987. DeWitt and Associates was the general
contractor on that job, which was valued at $4,025,000. Re-
spondent was working on the job as a subcontractor of Ozark
Interiors in April 1987. Both projects involved extensive use
of supplies moving in interstate commerce, and services per-
formed by contractors from outside the State of Missouri.
On or about August 13, 1986, the Charging Party Union
picketed the St. John’s job because of its labor dispute with
the Respondent. During the 1 day that picketing took place,
all work stopped on the three projects then in progress: The
Hamons Heart Institute (a $4,274,833 project), the Cardio
Cath Lab (a $362,407 project), and the Lithotripter job (a
$103,864 project) on which the Respondent was working as
a subcontractor of Ozark Interiors. Among the crafts which
refused to cross the picket line were pipe fitters, electricians,
carpenters, sheet metal workers, metal stud installers, tapers,
painters, elevator installers, pool installers, and laborers.
On or about April 16, 1987, the Charging Party Union
picketed the Holiday Inn construction project because of its
labor dispute with Ozark Interiors (and its alter ego, Union
Interiors), and the Respondent. Again, all of the crafts work-
ing on the project refused to cross the picket line, and all
work on the project was halted for the 1 day that picketing
by the Charging Party Union took place. At the time, there
were 73 people at work on the job, including carpenters, la-
borers, operating engineers, bricklayers, electricians, pipe fit-
ters, sheet metal workers, roofing workers, technicians, floor
covering workers, and painters. The Respondent, who was a
subcontractor of Ozark Interiors, had drywall finishers at
work on the project.
The impact of the work stoppages was to delay construc-
tion work on the projects, not only by the Respondent, but
by all of the contractors, subcontractors, and workmen work-
ing on the job at the time. The work stoppage had the further
chain reaction effect of getting back the work schedule for
completion of other work required to complete the project.
While there is no way to ascertain the total monetary cost
of the work stoppages, it is beyond dispute that the work
stoppages had some affect on interstate commerce. As pre-
viously noted, the relative size of the impact on the flow of
interstate commerce resulting from a work stoppage in the
construction industry is not a factor in establishing the
Board’s jurisdiction. The Board has jurisdiction over labor
disputes which affect interstate commerce, and with regard to
the construction industry, which is heavily dependent on
interstate commerce, it has been held that even small labor
disputes affect interstate commerce. The Board’s jurisdiction
in this case, therefore, is clearly established.
b. Collective-bargaining agreement
From the evidence of record, I find that on or about July
29, 1985, the Respondent entered into a binding collective-
bargaining agreement with Local 203, which agreement, by
its terms, did not expire until March 31, 1987.
Jerry Durham, d/b/a J & S Drywall, is engaged in the
building and construction industry. International Brotherhood
of Painters & Allied Trades, Local 203, the Charging Party,
is a labor organization whose members are employed in the
31J & S DRYWALL
6 In an affidavit taken by a Board agent on April 2, 1987, Alderson stated
that later that day or the next day, Dunbar, accompanied by Brad Dunbar,
came to the Union’s office, and while there signed the contract. Alderson said
in his affidavit that he was not present when Durham signed the contract.
Alderson was not examined during the hearing on the discrepancy between his
statements in his affidavit concerning the signing of the contract and his testi-
mony during the hearing concerning the same issue.
7 According to Alderson, the Union’s constitution does not permit new
members of the Union to work outside of their local’s jurisdiction for 6
months after joining. But, Alderson said, he told Durham that if he showed
his dues receipt to the Kansas City business agent, in all probability the busi-
ness agent would not ask Durham how long he had belonged to the Union.
building and construction industry. Section 8(f) of the Act
permits an employer engaged primarily in the building and
construction industry to enter into a prehire agreement ‘‘cov-
ering employees engaged (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.’’ There are, however, two statutory
qualifications applicable to prehire agreements under Section
8(f). First, Section 8(f) does not validate prehire agreements
where the union has been established, maintained, or assisted
by any action of the employer which violates Section 8(a)(2)
of the Act. Second, a prehire agreement under Section 8(f)
does not bar an election petition subsequently filed to deter-
mine the majority representative .
In the recent case of John Deklewa & Sons, 282 NLRB
1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988), the Board announced it was
abandoning its existing interpretations of Section 8(f), and
announced four new basic principles for the interpretation
and application of Section 8(f). As stated by the Board in
Deklewa, supra at 1385:
When parties enter into an 8(f) agreement, they will be
required, by virtue of Section 8(a)(5) and Section
8(b)(3), to comply with that agreement unless the em-
ployees vote, in a Board-conducted election, to reject
(decertify) or change their bargaining representative.
Neither employers nor unions who are party to 8(f)
agreements will be free unilaterally to repudiate such
agreements. During its term, an 8(f) contract will not
act as a bar to petitions pursuant to Section 9(c) or (e).
In determining the appropriate unit for election pur-
poses the Board will no longer distinguish between
‘‘permanent and stable’’ and ‘‘project by project’’ work
forces, and single employer units will normally be ap-
propriate.
In Deklewa, supra at 1387, the Board further held that
‘‘[b]eyond the operative term of the contract, the signatory
union acquires no other rights and privileges of a 9(a) exclu-
sive representative.’’ Thus, after the expiration of an 8(f)
contract, a ‘‘union enjoys no continuing presumption of ma-
jority status, and the Respondent is not compelled to nego-
tiate or adopt a successor agreement based solely on the ex-
istence of an 8(f) relationship.’’ Id. at 1389.
Concerning retroactive application of the new principles,
the Board stated in Deklewa that ‘‘we will apply the Board’s
new 8(f) principles to this case and to all pending cases in
whatever stage.’’ Ibid. The Board’s retroactive application of
Deklewa was upheld by the Third Circuit in Iron Workers v.
NLRB, supra. The Board, in a subsequent case, applied
Deklewa retroactively in deciding to defer to arbitration
awards which involve prehire contracts. MIS Inc., 289 NLRB
491 (1988). But, a Federal district court refused to apply
Deklewa retroactively in a case involving an employer’s re-
fusal to pay pension fund contributions after repudiating a
prehire contract. National Sprinkler Industry v. American
Automatic Fire Protection, 680 Supp. 731 (D.Md. 1988). In
accordance with the Board’s view, as upheld by the Third
Circuit Court of Appeals, I find that the Deklewa principles
are controlling in the instant case.
Section 8(a)(2) of the Act makes it an unfair labor practice
for an employer ‘‘to dominate or interfere with the formation
or administration of any labor organization or contribute fi-
nancial or other support to it . . . .’’ The difference between
unlawful domination and interference is a matter of degree,
with unlawful interference being the lesser offense. The
Board has said that there is no impropriety where there is no
evidence ‘‘demonstrating the absence of an arm’s length rela-
tionship between employer and union.’’ Coppinger Machin-
ery Service, 279 NLRB 609, 611 (1986). In that case, the
Board found no violation of Section 8(a)(2), by unlawful
support of a union by an employer, resulting from ‘‘coopera-
tion of a ministerial character growing out of an amicable
labor-management relationship.’’ Coppinger Machinery Serv-
ice, supra, 279 NLRB at 611.
According to James Alderson, the business agent for Local
203, Jerry Durham asked him on July 29, 1985, what was
involved in becoming a union contractor. Durham explained
that he had a job in Kansas City, for which he had to be
a union contractor and a union member. Alderson testified
that he told Durham that the latter would have to sign and
abide by a contract, and employ one journeyman before he
could work on the job himself. Alderson stated that his con-
versation with Durham on that day took place at the Ramada
Hawthorn Hotel in Springfield, Missouri, where Alderson
was working on a job.
The next day, testified Alderson, while he was working on
the same job, Durham handed him two copies of the joint
working agreement, which Durham had already signed and
dated.6 According to Alderson, he signed both copies of the
agreement, returned one to Durham, and kept the other. Dur-
ing the conversation, Durham asked Alderson if he would
have any problem working in the Kansas City area if he
showed the business agent of the local union having jurisdic-
tion over that area that he was a brand new member of Local
203, or had applied for membership. Alderson testified that
he told Durham that Local 203 would issue separate receipts
to Durham and Brad Dunbar for initiation payments and dues
payments, and that all Durham would have to show to the
business agent of the local union in Kansas City was the
dues receipt.7 Alderson stated that he did not talk to Brad
Dunbar about becoming a union member, nor was it his un-
derstanding that Jerry Durham was going to pay Dunbar’s
dues, but, he acknowledged that he told Durham that the lat-
ter could take Brad Dunbar to the Union’s office and have
him sign up as a member of the Union.
Local 203’s records show that Brad Dunbar joined Local
203 on July 29, 1985, and, made additional payments to-
wards his initiation fee in August and September 1985; and,
that Jerry Durham first joined Local 203 on September 14,
1983, and subsequently made irregular payments of various
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Local 203’s membership ledger shows that Brad Dunbar made payments
for dues, and/or initiation or other fees on July 29, 1985; August 8, 1985; and,
September 24, 1985. The ledger sheet for Jerry Durham shows that he made
payments to Local 203 for dues, and/or initiation or other fees on February
14, 1983; June 20, 1983; during October 1983 (day of the month is obliterated
on the copy of the ledger in evidence); on April 4, 1984; and, on July 29,
1985. Jerry Durham testified that he first joined Local 203 in 1983.
9 Jerry Durham and Brad Dunbar were dropped as members of Local 203
on March 31, 1986, because they were 6 months behind in paying their dues.
10 James W. Alderson testified that Local 203 moved its office from 1918
East Meadowmere to 2200 East Sunshine in November or December 1985.
11 Jerry Durham described Brad Dunbar as one of his most regular workers.
12 Linda Alderson, the Union’s secretary, testified that Jerry Durham did not
make any payments to the Union’s benefit funds. She said that she just sup-
posed that he did not have any jobs. Linda Alderson said that employers usu-
ally request fringe benefit report forms, and that she did not necessarily send
them to employers automatically.
fees to Local 203, the last such payment having taken place
on July 29, 1985.8 Linda Alderson (James W. Alderson’s
wife), who is employed as a secretary by Local 203, testified
that Jerry Durham and Brad Dunbar came to the Union’s of-
fice on July 29, 1985, signed up as members of the Union,
and made payments on their initiation fees. At that time,
Durham asked for a copy of the contract, and she gave him
two copies. A few days later, Durham came into the Union’s
office again, and asked her questions about the contract. He
did not leave a signed copy of the contract. Linda Alderson
testified that her husband, James W. Alderson, brought in a
copy of the contract with Durham’s signature on it.
Linda Alderson testified that Brad Dunbar probably came
to the Union’s office on two other occasions, and that he
made more payments on his initiation fee than Durham made
on his.9
According to Linda Alderson, Durham later came into the
Union’s office, and stated that he could not obtain the bond
required by the collective-bargaining agreement to secure his
payments to the Union’s fringe benefits funds. She testified
that she told him to check with Ollis & Company about ob-
taining a bond. Linda Alderson said that conversation took
place after Local 203 had moved its office from Sunshine
(Street) to Meadowmere (Street).10
James Alderson stated that he was never present in the
Union’s office when Jerry Durham came there accompanied
by Brad Dunbar.11 Alderson testified that on later occasions,
not all of which were in 1985, he met with Durham, alone,
in the Union’s office, and they talked about the contract
(Joint Working Agreement). Alderson said that Durham
never said he could not get a bond, but that he did ask what
would happen if he could not get one.
Admitted into evidence is a document entitled ‘‘Joint
Working Agreement,’’ which Alderson identified as the
agreement which he and Durham signed. The document
bears the handwritten signature of ‘‘Jerry C. Durham,’’ in
black ink, under the printed word ‘‘EMPLOYER,’’ and the
partially handwritten date of signing, also in black ink, as
follows, with the handwritten part underlined: ‘‘SIGNED this
29 day of July 1985.’’ The number ‘‘5’’ is handwritten over
the printed number ‘‘4’’ in the printed year ‘‘1984.’’ Under
the printed words ‘‘PAINTERS LOCAL 203’’ appears the
handwritten signature, in blue ink, of ‘‘J. W. Alderson.’’ The
signature of ‘‘Jerry C. Durham’’ and the handwritten month
of ‘‘July’’ in the date appear to be in the same person’s
handwriting, using the same pen. The handwritten number
‘‘29,’’ appearing in the blank space preceding the printed
word ‘‘day,’’ and the handwritten number ‘‘5,’’ super-
imposed over the the printed number ‘‘4’’ in the printed year
‘‘1984,’’ seem to have been handwritten with the same pen
used in writing the signature of ‘‘Jerry C. Durham’’ and the
word ‘‘July.’’
The joint working agreement provides for a union dues-
checkoff system, and requires the employer to carry work-
men’s compensation, public liability, and property damage
insurance. The employer is also required to maintain a bond
‘‘to cover all deductions and contributions due the Union and
any trust funds.’’ The agreement requires the employer to
make payments to the Union’s apprenticeship training fund,
and health and welfare fund.
Jerry Durham, admitted that he did not pay anything into
the Union’s fringe benefit funds or its apprentice training
fund during the period from September 27, 1986, through
March 29, 1987.12
Alderson testified that the next time he saw Durham was
in June or early July 1986, on the St. John’s Regional Health
Center job. On that occasion, Alderson told Durham that he
and Brad Dunbar were behind in paying their union dues,
and he asked Durham when he thought they would catch up.
Durham replied that he would not be paying any more dues,
that he was a nonunion contractor, and that he was not work-
ing on union jobs. Durham disputed that the St. John’s job
was a union job. Alderson testified that he told Durham that
the contract (Joint Working Agreement) which he had signed
covered all jobs, and made no distinction between union and
nonunion jobs. Durham asked if he had signed a contract
with the Union. Alderson testified that he told Durham that
he had a copy (of a Joint Working Agreement) with Dur-
ham’s signature on it. Durham replied that if his signature
was on it, he must have signed it. Durham stated that he
could not afford to be in the Union, or pay union scale
wages and benefits, and said that he was going to finish up
that job and get out of commercial work.
The following day, according to Alderson, he had con-
versation with Durham at the Union’s office. Durham in-
quired how much he would have to charge per square foot
for finishing sheet rock in order to pay union scale wages
and benefits. Alderson testified that he told Durham that the
Union’s accountant could help Durham figure that out, and
he told Durham that the Union needed to know that Durham
had Missouri workmen’s compensation insurance (and that
most people would require that he have public liability insur-
ance before he could work on jobs). In response to Durham’s
question concerning what would happen if he could not ob-
tain a $5000 bond to cover payments to the Union’s benefits
funds, Alderson said he told Durham that the Union had
waived that requirement for some small employers, with only
one or two employees, while some employers had put up a
cash deposit and other employers had purchased certificates
of deposit in the name of their company and the Union’s
trustees.
According to Alderson, the Union picketed the St. John’s
job for one day on approximately August 13, 1986. The
picket sign in front of the Hammons Heart Institute read
‘‘Painter Local 203 on Strike against Union Interior, Incor-
porated.’’ The sign in front of the St. John’s Regional Health
Center read the same, except that the strike was against Jerry
33J & S DRYWALL
13 Alderson testified that he had two conversations with Ted Smith, of
DeWitt and Associates, about Jerry Durham, the first of which was on August
14, 1986, the day after the picketing. In his earlier statement to a Board agent,
Alderson said that after picketing the St. John’s job, he received a telephone
call from Ted Smith, President of DeWitt and Associates, who said that he
would get Durham off the job. After seeing Durham on the job again about
a week later, Alderson said, he called Ted Smith, who said he said he would
get Durham off the job and did.
14 Durham had previously belonged to Local 203 from 1983 until December
1984.
15 The Respondent billed Ozark Interiors in the amount of $521.14 on July
14, 1986, for work on the Lithotripter job at St. John’s. The work had taken
about a week, and was performed during the second week of July.
16 As previously noted, according to the undisputed testimony of James
Alderson, in November or December 1985, the Union moved its office from
1918 East Meadowmere Street, Springfield, Missouri, to 2200 East Sunshine
Street. Thus, in July 1986, the time when Jerry Durham stated he went to the
Union’s office on Meadowmere Street to obtain information about becoming
a union contractor, the Union’s office was actually located on East Sunshine
Street.
Durham Drywall or, according to Alderson, possibly J & S
Drywall. The reason for the picketing was the failure of the
Respondent to make payments to the Union’s fringe benefits
funds. Alderson acknowledged, however, that he did not send
a letter to Jerry Durham informing him of the purpose of the
picketing or the requirement that he make payments. That re-
quirement, said Alderson, was contained in the contract,
which Durham had signed.
Alderson testified that he next saw Durham on August 20,
1986, working on the St. John’s job. On that particular day,
Durham and Brad Dunbar were working side by side taping
and finishing a wall. In response to Alderson’s question to
Durham concerning his intentions, Durham said that he had
been told by the job superintendent to get off the job and
guessed he would have to get off commercial work alto-
gether.13 Alderson testified that he called Ted Smith, the
president of DeWitt and Associates, who said he would get
Durham off the job, and followed through on that promise.
Alderson stated that Durham should have made payments to
the Union’s benefit funds for the work he performed on the
St. John’s project in July and August 1986, but, Alderson,
admitted, he never talked with Durham about money owed
to the Union for anything other than dues.
In March 1987, Alderson testified, he saw Jerry Durham,
Brad and Frank Dunbar, James McGill, and two others
Alderson did not know, doing drywall finishing work on the
new Holiday Inn project. Earlier in March 1987, Alderson
had observed two drywall finishers he did not know working
on the Holiday Inn job. They told him that Jerry Durham had
sent them.
On March 23, 1987, Melvin Painting Company employees
walked off the Holiday Inn project, because there were non-
union tapers working on the job. Alderson said that he did
not see Jerry Durham or his pickup truck on the job on
March 23, 1987, but he thought that as of that date Durham
had repudiated the collective-bargaining agreement, and
Alderson filed the charge in this case on that day. On April
16, 1987, the Union picketed the Holiday Inn jobsite because
nonunion drywall finishers were working on the job.
Alderson stated that he did not send Durham any cor-
respondence informing the latter that he was required to
make payments to the Union’s benefit funds, nor did he in-
form Durham that the Union was relying on the contract
when it picketed the jobsites where Durham was working.
While there is a no strike clause in the contract, Alderson
said, the contract also provides that the Union can take what-
ever steps are necessary when an employer fails to make
contributions to the Union’s benefit funds within 10 days
after the date required by the Union. Alderson acknowledged
that the Union did not make use of the contract’s grievance
procedures concerning its dispute with the Respondent.
Jerry Durham testified that he rejoined the Union on July
29, 1985, in order to do some work in the Kansas City, Mis-
souri, area.14 According to Durham, he and Brad Dunbar
went to the Union’s office on Sunshine Street, where they
both signed up as members, made payments (towards dues
and initiation fees), and received receipts and work cards.
Durham stated that he did not recall seeing Alderson on that
occasion. He denied that he signed the Joint Working Agree-
ment at that time.
Durham acknowledged that he performed drywall finishing
work on the St. John’s hospital project in July, August, and
possibly September 1986.15 He said that he began working
on the new Holiday Inn job in March 1987, and that at times
he had as many as 10 to 12 workers on the job. Durham said
he worked on both the St. John’s job and the new Holiday
Inn job as a subcontractor of Ozark Interiors.
Durham testified that he had hoped to get additional work
finishing 50,000 square feet of sheetrock on the St. John’s
job. However, after the picketing by the Union, he was told
by Ozark Interiors that he would have to leave the job be-
cause there was a union problem.
By an invoice bearing the date of July 14, 1986, Jerry
Durham billed Ozark Interiors $521.14 for the work he had
done on the Lithotripter part of the St. John’s Hospital
project. He testified that he had performed the work during
the second week of July 1986, and that Brad Dunbar had
worked with him part of the time. Durham said that while
working on that job, he had a conversation with James
Alderson, during which Alderson told him that the job was
a union job. The next day, Durham said, the Union picketed
the job. Durham said that he completed the part of the
project he was working on, but he was unable to get the job
of doing an additional 50,000 square feet of drywall finishing
work on the project, because Ozark Interiors told him that
there was union trouble and he had to leave.
Durham testified that a day or two after seeing Alderson
on the St. John’s job, he went to the Union’s office on
Meadowmere Street,16 because he wanted to ask to Alderson
what he would have to do to become a union contractor, so
that he could get the job of finishing the additional 50,000
square feet of drywall on the St. John’s job from Ozark Inte-
riors. He spoke to Alderson in a large room, in which the
Union’s secretary was also present, but not within hearing
distance. According to Durham, Alderson told him he would
have to sign a contract and comply with its terms. Durham
stated that Alderson was unable to say how much Durham
would have to raise his bids to cover his additional costs, nor
did Alderson know how much the insurance and bond re-
quired by the contract would cost. From Alderson, Durham
testified, he received a copy of the contract, but he did not
sign it at that time. Durham said he did not believe that
Alderson had signed it as of then, either. In fact, Durham
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The copy of the notice offered in evidence was obtained by the Respond-
ent’s wife from the Don Tripp Agency, Inc., Mansfield, Missouri. The Re-
spondent stated that he did not remember receiving a copy of the notice in
1986. The notice was admitted in evidence by stipulation of the parties as R.
Exh. 16.
said, he never saw or received a copy of the contract with
both signatures on it.
Durham testified that he subsequently signed the contract,
but denied that he met again with Alderson before doing so.
According to Durham, a day or two after he talked to
Alderson in the Union’s office, he went back to the office,
and in Alderson’s absence, signed one copy of the contract,
which he gave to Alderson’s secretary, and requested that
she give it to Alderson. Durham admitted that he signed
General Counsel’s Exhibit 10, but denied that Alderson had
already signed it for the Union, or that Alderson ever signed
in his presence. He said that he did not subsequently receive
a copy of the s contract bearing Alderson’s signature, nor did
anyone inform him that Alderson had accepted the contract.
Durham denied that after signing the contract (G.C. Exh.
10), he required anyone who worked on his jobs to join the
Union, pay dues or initiation fees to the Union, or be re-
ferred through the union hiring hall.
Both Durham and his wife, Sandra, testified that Durham
was unable to obtain the necessary insurance and bond. After
trying without success to obtain the insurance and bond, Dur-
ham said, he met again with Alderson in the Union’s office,
at which time he told Alderson that he had not been able to
obtain the insurance and bond. According to Durham, he told
Alderson that he did not intend to hire any union employees
or take union jobs, and that he did not intend to be bound
by the contract. Altogether, according to Durham, he went to
the Union’s office three times, but he saw Alderson only
during the first and third occasions.
Durham testified that he had never started performing as
a union contractor, and never treated the contract as binding
on him. He stated that he was unaware that Alderson was
going to claim there was a binding contract until he had a
conversation with Alderson on the Holiday Inn job a day or
two before March 25, 1987.
Durham fixed the date on which he signed General Coun-
sel’s Exhibit 10 (the Joint Working Agreement) as a few
days before July 17, 1986, the date of a notice he received
from an insurance agency stating that his application for a
labor bond had not been approved by the home office.17
On balance, after considering the Respondent’s demeanor
as a witness and the improbability of much of his testimony
on key points, I do not credit the Respondent’s testimony
concerning when he signed the collective-bargaining agree-
ment with the Union.
A comparison of the handwritten signature of Jerry C.
Durham on the collective-bargaining agreement, which Re-
spondent admits is his, with the handwritten portions of the
date of July 29, 1985, the date of signing, as shown on the
original collective-bargaining agreement, discloses even to a
layman’s eye, that the handwritten portions of the date were
written by the same person, with the same pen, as was the
signature of Jerry C. Durham. From this, I conclude that
Jerry C. Durham signed the collective-bargaining agreement
with the Union, and fixed the date of signing as July 29,
1985.
Jerry Durham’s claim that he signed the collective-bar-
gaining agreement, leaving the day and month of signing
blank (1984 was already printed on the unsigned contract
form as the year signed), is incredible on its face. Further,
his claim that he signed the agreement a few days before
July 17, 1986, the date of a notice which he received from
an insurance agency denying his application for a labor bond
required by the agreement, is at odds with the chronology of
events which he claimed led up to his signing the agreement
in the first place.
According to Durham, he billed Ozark Interiors on July
14, 1986, a couple of days after he completed the work, for
his work on the Lithotripter area of the St. John’s Hospital
project. It was while working on that job during the second
week of July 1986, he said, that the Union picketed the job
site, an action which he said precluded him from receiving
an order to do an additional 50,000 square feet of drywall
finishing in the Lithotripter area. It was to get this additional
work, according to Durham, that he decided to become a
union contractor. But it is clear from the testimony of Ted
Smith, the representative of DeWitt and Associates, the gen-
eral contractor on the St. John’s Hospital job, that the picket-
ing by the Union to which Durham referred did not occur
until on or about August 13, 1986, a month later, more or
less. That date corresponds to the date which James
Alderson, the Union’s business agent, gave as the date his
Union picketed the St. John’s Hospital job. From this, I con-
clude that Jerry Durham did not sign the collective-bargain-
ing agreement during the timeframe which he claimed.
I credit the testimony of Linda Alderson, the Union’s sec-
retary, that, contrary to Jerry Durham’s testimony, he did not
give her a copy of the collective-bargaining agreement bear-
ing his signature. I find Linda Alderson to be a credible wit-
ness, who testified candidly and forthrightly that she received
the signed collective-bargaining agreement from her husband,
James Alderson.
While there is a discrepancy between James Alderson’s
prehearing statement and his testimony during the hearing as
to how the copy of the collective-bargaining agreement bear-
ing the Respondent’s signature came into the Union’s posses-
sion, I conclude that his testimony concerning the time when
the agreement was signed is plausible and believable. Ac-
cordingly, based on these factors, as well as his forthright
and candid demeanor while on the stand as a witness, I ac-
cept Alderson’s testimony that he received two signed copies
of the agreement from the Respondent on or about the date
of signing shown on the agreement, July 25, 1985, and that
he signed both copies for the Union, and returned one of
them to the Respondent. Alderson was not asked to explain
the discrepancy between his prehearing statement and his tes-
timony on this point during the hearing. Recollections may
vary with time, and details not recalled at one time may be
recalled at another. In this instance, based on his demeanor
as a witness, I conclude that his testimony during the hearing
was his most accurate and complete recollection of the sign-
ing of the agreement.
Among other factors I have considered in determining that
Alderson’s testimony during the hearing is reliable, there is
no evidence of any benefit flowing to the Union regardless
of whether the agreement was signed in 1985, as claimed by
Alderson, rather than in 1986, as claimed by Durham, such
as might have given Alderson a motive to falsify the date of
35J & S DRYWALL
18 Even if Respondent’s signing of the agreement is construed as nothing
more than an offer to enter into an agreement, it is well settled that an offer
remains on the table unless withdrawn by the offeror, or circumstances arise
which would lead the parties to believe the offer had been withdrawn. Magic
Chef, Inc., 288 NLRB 2 (1988). I find no evidence that the Respondent with-
drew his offer, or that his conduct put the Union on notice that he had with-
drawn the offer. Neither is there any evidence that the Respondent specified
any particular manner or time of acceptance by the Union, such that it might
be argued that his offer lapsed because the Union did not comply with the
terms of the offer. To the contrary, the Union informed the Respondent that
he could become a union contractor simply by signing the collective-bargain-
ing agreement form which the Union provided. The offer to enter into a col-
lective bargaining agreement actually in this case originated with the Union,
which by presenting the Respondent with the form agreement indicated its
offer to enter into a binding collective-bargaining relationship. Thus, arguably,
there was a binding agreement when the Respondent returned the form agree-
ment with his signature on it to the Union. In any event, I find that, based
on the testimony of James Alderson, whom I find, based on his demeanor on
the stand, to be a credible witness, a copy of the agreement bearing Alderson’s
signature was given to the Respondent.
19 The 6-month 10(b) period prior to the filing of the charge on March 25,
1987.
signing of the agreement. The events which are the basis of
the charge in this case allegedly occurred in 1987, which is
after the date of signing claimed by either Alderson or Dur-
ham.
The Respondent’s claim that even though he may have
signed the agreement, he did not know it had been accepted
by the Union, and, therefore, there was no acceptance of his
offer and no contract, is unbelievable in light of his subse-
quent conduct.18 Respondent admitted visiting the Union of-
fice on one or more occasions after he had signed the agree-
ment to explain his difficulties in obtaining the bond and in-
surance coverage required by the agreement. It is obvious
from his conduct that Durham thought there was an agree-
ment in place; the suggestion that he did not know the
Union’s representative had also signed the contract, or that
the Union was waiting for him to get the required insurance
before signing the agreement, is ludicrous. There is no sug-
gestion in the record that either the Respondent or the Union
considered the agreement to be binding only if the Respond-
ent succeeded in complying with the insurance and bond re-
quirements contained in the agreement. James Alderson in-
formed the Respondent that the bond requirement might be
waived, but the Respondent never asked for a waiver. Linda
Alderson gave the Respondent the name of bonding agency
which might provide the Respondent with the bond required
by the agreement, but the Respondent never contacted the
agency. It is clear that the Respondent knew there was a
binding agreement; he simply decided to ignore it.
As noted above, under principles announced by the Board
in John Deklewa & Sons, supra, which are applicable retro-
actively, neither party to a 8(f) agreement may unilaterally
repudiate the agreement during its term. Any attempt by the
Respondent in this case to repudiate his agreement with the
Union during the term of that agreement was of no effect.
Finally, I find no evidence that the Respondent violated
the Act by dominating or interfering with the Union. There
is no evidence suggesting that there was anything other than
an arm’s-length relationship between the Respondent and the
Union. The Respondent, in fact, denied that he required any-
one who worked on his jobs to join the Union, pay dues or
initiation fees to the Union, or be referred through the Union
hiring hall.
c. The 10(b) issue
I find that the complaint in this case is not barred by Sec-
tion 10(b) of the Act.
Section 10(b) of the Act provides:
That no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such
charge is made . . . .
The Board has said that ‘‘[i]t is well established that ‘the
6-month limitations period prescribed by Section 10(b) does
not begin to run on an alleged unfair labor practice until the
person adversely affected is put on notice, actually or con-
structively, of the act constituting it.’’’ Metromedia, Inc.-
KMBC-TV, 232 NLRB 486, 488 fn. 20 (1977). In the instant
case, it is not disputed that the Union did not file a charge
with the Board within 6 months after it first believed that the
Respondent was not complying with the terms of the collec-
tive-bargaining agreement which he had signed on or about
July 29, 1985. The Union and the Respondent agree that the
Respondent made no payments to the Union’s fringe benefits
funds at any time after he signed the agreement. As early as
June or July 1986, the Union was convinced that the Re-
spondent was not complying with the collective-bargaining
agreement, and on or about August 13, 1986, it picketed a
job on which the Respondent was working because the Re-
spondent had not made any payments to the Union’s fringe
benefit funds. The Union did not file its charge with the
Board, however, until March 25, 1987, more than 8 months
after the picketing, and even longer after it first believed that
the Respondent was not complying with the agreement.
The Board has also said, however, that ‘‘each failure to
make contractually required monthly benefit fund payments
constitute[s] a separate and distinct violation [of Section
8(a)(5)].’’ Farmingdale Iron Works, 249 NLRB 98, 99
(1980). Thus, each failure of the Respondent to make a con-
tractually required benefit fund payment after September 27,
1986,19 is a violation of the Act which is subject to the
Board’s remedial powers.
I find that there is credible evidence that during the 6
months period preceding the filing of the charge by the
Union, the Respondent performed drywall finishing work
which was covered by the collective-bargaining agreement
which he signed, and that he failed to comply with the agree-
ment with respect to this work by not paying his employees
in accordance with the agreement and by failing to make the
payments to the Union’s fringe benefit funds as required by
the agreement. Accordingly, I find that the charge filed by
the Union was based on unfair labor practices occurring
within 6 months of the filing of the charge.
d. The employee vs. independent contractor issue
I find that there is sufficient evidence to establish that at
least some of the persons who worked on Respondent’s
drywall finishing jobs after September 25, 1986, were em-
ployees, as defined by the Act, and not independent contrac-
tors, as claimed by the Respondent. Included as employees
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 In applying the ‘‘right of control test,’’ the Board said:
If the recipient of the services in question has a right to control not
only the end to be achieved but also the means to be used in reaching
such result, an employer relationship exists as a matter of law; otherwise
there exists an independent contractor relationship. The application of this
principle is not a mechanical one in any case, but requires a careful bal-
ancing of all factors bearing on the relationship. [146 NLRB at 145–146.]
21 The Board also said in A. S. Abel Publishing Co., 270 NLRB at 1202,
that ‘‘[i]ts determination of which type of control is retained by the alleged
employer turns on the particular facts of each case.’’
22 Citing Mission Foods Corp., 280 NLRB 251 (1986).
23 Also spelled ‘‘Munden’’ in other records prepared or maintained by Re-
spondent.
24 Tim Huckin received checks for labor on December 15, 19, and 24, 1986.
James Amos was paid for labor on December 20 and 21, 1986.
25 The Respondent stated that he told Frank Dunbar to install the corner
bead first, in the manner which he had told Frank and Brad Dunbar that he
preferred. The Respondent said that Frank Dunbar had been trained in drywall
finishing by his brother, Brad Dunbar.
are Frank and Brad Dunbar, who the Respondent stated he
tried to keep busy generally, and Timothy Huckin and James
Amos, two drywall finishers who worked for Respondent for
a brief period of time on the John Q. Hammons Trade Center
job in Joplin Missouri. There is insufficient evidence in the
record from which it can be determined whether others who
worked for Respondent on his various jobs during the same
period of time were employees or independent contractors.
Section 2(3) of the Act specifically excludes ‘‘independent
contractors’’ from the definition of ‘‘employees.’’ In deter-
mining the employee-independent contractor issue, the Board
applies the common law ‘‘right of control’’ test. National
Freight, Inc., 146 NLRB 144, 145–146 (1964).20 More re-
cently, the Board stated in H & H Pretzel Co., 277 NLRB
1327, 1328 (1985):
In determining the status of individuals alleged to be
‘‘independent contractors,’’ the Board applies a ‘‘right
of control’’ test. If the person for whom the services
are performed retains the right to control the manner
and means by which the results are to be accomplished,
the person who performs the services is an employee.
If only the results are controlled, the person performing
the is an independent contractor. A. S. Abel Publishing
Co., 270 NLRB 1200 (1984).21
In addition to applying the common law right-of-control
test to determine whether individuals are employees or inde-
pendent contractors, the Board has also said that ‘‘for an
independent contractor relationship to exist, the arrangement
most typically should exhibit entrepreneurial or proprietary
characteristics.’’ Roadway Package System, 288 NLRB 196,
198 (1988).22 Similarly, in determining employee or inde-
pendent contractor status, the Ninth Circuit, in Merchants
Home Delivery Service v. NLRB, 580 F.2d 966, 973 (9th Cir.
1978), also considered such other factors as (l) entrepreneur-
ial aspects of the individual’s business, (2) risk of loss and
opportunity for profit, and (3) the individual’s proprietary in-
terest in his business. Factors found by the Board not to nec-
essarily preclude employee status include authority to use or
hire replacements and helpers, and the lack of wage
withholdings or benefits accorded other employees. Roadway
Package System, supra; Mission Foods Corp., supra.
The collective-bargaining agreement which the Respondent
signed required the Respondent, among other things, to de-
duct and pay social security taxes for all employees; pay em-
ployees according to an hourly scale contained in the agree-
ment; contribute monthly to the Painters Local 203 Appren-
ticeship Training Fund an amount based upon a rate of five
cents for each hour an employee receives pay; and contribute
to the Union’s Health and Welfare Fund on a monthly basis
at a rate specified in the agreement for each hour or portion
thereof that an employee receives pay.
The Respondent and his wife, Sandra Durham, who keeps
her husband’s business records, claim that all of the persons
who work for J & S Drywall are subcontractors. Nothing is
withheld from their pay by J & S Drywall, and, according
to Sandra Durham, she files for each person or entity who
does work for J & S Drywall an IRS Form 1099-MISC, de-
claring the money which they received from J & S Drywall
to be ‘‘nonemployee compensation.’’ Placed in evidence by
the Respondent are copies of IRS Form 1099-MISC (Mis-
cellaneous Income), for the year 1986, identifying ‘‘J & S
Drywall/Jerry C. Durham’’ as the payer, and the following
individuals as recipients of the ‘‘nonemployee compensa-
tion’’ shown:
Frank Dunbar $2,016.50
Thomas G. Durham 1,862.92
Fred Nelson 3,259.00
Brad Dunbar 9,463.50
Bill Mundun23 1,200.00
John Ryan 946.99
Respondent’s check journal for all or parts of the months
from September 1986 to April 1987, contains records of nu-
merous checks to various payees, described as being for sub-
contractor labor. According to the Respondent, those checks
were used to pay for his ‘‘subcontract labor.’’ The Respond-
ent stated that he usually paid for labor on completion of the
job; however, on longer jobs, he paid for labor on a weekly
basis. The most frequent recipients of subcontract labor
checks were Brad Dunbar, Frank Dunbar, and John Ryan
Drywall. During the period from September 12, 1986, to
April 4, 1987, 21 checks were issued to Brad Dunbar. Dur-
ing the period from November 14, 1986, to April 10, 1987,
17 checks were issued to Frank Dunbar. And, during the pe-
riod from December 5, 1986, to March 27, 1987, 10 checks
were issued to John Ryan Drywall. Names appearing less
frequently in Respondent’s records as subcontractors include
Fred Nelson and Bill Munden.24
The Respondent testified that he started on the Holiday Inn
construction job in March 1987, as a subcontractor of Ozark
Interiors. Respondent stated that he had 10–12 workers on
the job, but that he identified some of them only by the
name of the subcontractor who sent them. Initially, he used
several workers sent by his brother, Ron Durham, and he put
Frank Dunbar to work on the job. According to Durham, he
took the workers to the areas which they were to do, pointed
out where the supplies were and other things they should no-
tice, such as the fact that the ceiling were 8 feet 6 inches,
not the standard 8 foot ceilings, and that the drywall had to
be finished all the way to the floor, not to within 2 inches
from the floor, as is the normal procedure. The Respondent
stated that on the floors he worked on, he told each worker
where to work; on the other floors, the workers did the work
however they chose.25
37J & S DRYWALL
26 According to Respondent, 80 percent of his workers are hired that way.
According to Respondent, when people ask for work, he asks them if they
have their own tools, tells them what the work will pay, and if that is satisfac-
tory, shows them where to work.
27 Respondent said he did not recognize the names of Tim Huckin or James
Amos.
28 Elaborating on the basis upon which he pays Brad Dunbar, whom Re-
spondent described as an average but trustworthy worker and personal friend,
Respondent said that Brad Dunbar works on a cost plus basis when it is doubt-
ful that he can make a decent wage on a per-square-foot basis. Respondent
said that if Brad Dunbar tried to do a job on a per square foot basis, but did
not make any money, he changed Dunbar’s pay to a cost plus basis. According
to Respondent, he will not let Dunbar work for nothing, and does whatever
it takes for him to make money. The Respondent said that Brad Dunbar is
a college student, and works for J & S Drywall 20 to 30 hours a week.
29 Respondent’s records show that Timothy Huckin received checks for
‘‘subcontract labor’’ dated December 12, 1986 ($240), December 19, 1986
($510), and December 24, 1986 ($385).
30 Respondent’s records show that checks for ‘‘subcontract labor’’ were
issued to James Amos on December 20, 1986 ($80), and December 21, 1986
($40).
On the Holiday Inn job, Respondent said, he inspected the
work performed by J & S Drywall’s workers, and if the
work was not satisfactory, he sent the worker who had per-
formed it back to do it over again. One worker hired by Re-
spondent to work on the Holiday Inn job was John Savage,
who came on the jobsite and asked for work.26 Respondent
stated that after sending Savage back twice to repair faulty
workmanship, and the work still was not satisfactory, he did
the work himself, and told Savage he was no longer needed
on the job.
Describing his normal procedures, Respondent said that he
measures the job and tells his subcontractors how much he
will pay for the work. Respondent said that he writes the
measurements on scratch paper, but also tells the subcontrac-
tors to measure it for themselves. Respondent said that if he
has two or more people working on the same wall, they
would be part of a crew provided by a subcontractor, and it
would be up to the subcontractor to pay his people.
According to the Respondent, for some jobs, he calls peo-
ple he knows are capable of doing the work. Respondent
stated that he normally uses Frank or Brad Dunbar, and John
Ryan Drywall. Respondent stated that he tries to keep them
busy. Respondent described Brad Dunbar as one of his most
regular workers since the fall of 1986. He testified that he
would like to keep John Ryan busier, but cannot, and that
he only uses Fred Nelson, who has more people working for
him, when J & S Drywall is behind on a job. The Respond-
ent stated that he used Bill Munden occasionally during late
1986 and early 1987.27
Respondent testified that he gave Brad Dunbar a bonus in
January 1987. He said that he did not believe he gave bo-
nuses to Frank Dunbar or John Ryan. Respondent said that
he raised the hourly pay of Brad Dunbar and Frank Dunbar.
According to the Respondent, Brad and Frank Dunbar are
paid by the hour when they do fill in work, or by the square
foot, when they do jobs which they can complete by them-
selves.28 John Ryan is usually paid by the square foot; he
seldom is paid by the hour.
According to the Respondent, one project upon which
Brad and Frank Durham, and John Ryan worked was the
John Q. Hammons Trade Center in Joplin, Missouri. Re-
spondent said he inspected their work twice a week, and
found no quality problems.
Frank Dunbar testified that he has worked for J & S
Drywall for about a year. He stated that he had not done
drywall work before that, and that he learned the trade by
working with Jerry Durham, but mostly by working with his
twin brother, Brad Dunbar. Dunbar stated that when he
worked with Jerry Durham, the latter showed him how to do
drywall finishing work, and explained how he liked his jobs
to be done, saying he wanted Dunbar to do it that way. Dun-
bar said that Jerry Durham tells him when a job has to be
finished, and that he starts the job enough in advance to meet
the completion date. He stated that Jerry Durham tells him
which jobs have priority, and that on occasion Durham has
told him to leave one job and go to another. Dunbar stated
that he is paid by the hour. He said that he started working
for J & 5 Drywall at $5 per hour, but that Durham later de-
cided he needed a raise, without Dunbar asking for one, and
increased his pay to $6 per hour. Dunbar said he submits his
hours to J & S Drywall, and that J & S Drywall does not
withhold anything from his pay for income tax, social secu-
rity, or unemployment compensation. Dunbar said that he
averages 20 hours a week doing drywall finishing. Dunbar
said that he and his brother work as a team, and call them-
selves ‘‘Mud Dobbers, Inc.,’’ even though they are not incor-
porated. He stated that he and his brother have done drywall
finishing work for people other than Jerry Durham.
Timothy Huckin testified that he is a drywall finisher, and
that he worked for Jerry Durham on the John Q. Hammons
Trade Center job in Joplin, Missouri, for several weeks in
late 1986.29 Huckin said that Jerry Durham called him, and
asked him if he wanted work. Huckin said that he met Dur-
ham at the job site, and that Durham showed him what had
to be done, and where to get water and materials (tape and
joint compound, called ‘‘mud’’). Huckin said that he brought
his own tools, and that Durham furnished the scaffolding and
‘‘Ames tools,’’ a brand of tools which eliminate much of the
handwork in finishing drywall and make it possible to do the
work faster. Huckin said that it was not necessary for Dur-
ham to show him how to do the work, as it was expected
that he already knew how to finish drywall. Huckin said that
Durham had other people working on the job, and that one
of them, who Huckin thought was Durham’s foreman, told
him to take his lunchbreak at 12 noon. In addition, Huckin
said, he took a couple of breaks at other times during the
day. Huckin said that he was paid $10 per hour, and that he
kept track of the time he worked. He said he was paid every
Friday.
James Amos, a drywall finisher, testified that he worked
for J & S Drywall or Jerry Durham on the John Q.
Hammons Trade Center job for a day or two on a weekend
in late 1986.30 He stated that he is a member of Painters
Local 203, and that he is a friend of Tim Huckin. Amos said
that he had a regular job at the time, and may have found
out from Huckin about the availability of extra work at the
Trade Center. He said he went to the Trade Center, where
he talked to Jerry Durham, who confirmed that he was be-
hind schedule on the job and needed help. Huckin and others
were working for Durham on the job. Amos said that Dur-
ham showed him the area he was to work on. Amos supplied
his own tools; the materials were on the job. Huckin was
paid $10 per hour for his work, and received his pay by
check from J & S Drywall. Amos said he was told when it
was breaktime, and when it was time for dinner. According
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 I reject General Counsel’s request for a visitorial clause, whether it be
broad or narrow in scope. Such clauses are not routinely included in the
Board’s orders. In this case, there are no grounds for issuance of either type
of visitorial clause. The record does not show there to be any basis for a broad
visitorial clause, such as a likelihood that the Respondent would fail to cooper-
ate or otherwise seek to evade compliance with any order the Board should
issue in this case. Nor is there any basis for including a narrow visitorial
clause. There is no question in this case concerning how and by whom compli-
ance with any order of the Board is to be effected. (See Cherokee Marine Ter-
minal, 287 NLRB 1080 (1988); 299 Lincoln Street, Inc., 292 NLRB 172
(1988).)
to Amos, all of the crews on the job (electricians, plumbers)
pretty much took lunch and breaks at the same time. Amos
said that Durham may have told him when it was breaktime
in the afternoon. Amos said he was already qualified to per-
form the work, and did not need training. Amos said that he
assumed the job was nonunion, and that no deductions were
taken from his pay. He said that he knew the Union’s con-
stitution prohibited members from working for nonunion
contractors.
It is clear from the evidence that Brad and Frank Dunbar,
Timothy Huckin, and James Amos were employees of the
Respondent within the meaning of the Act. During the period
of time beginning 6 months before the charge was filed, each
of these individuals worked for the Respondent for an hourly
wage, although the Respondent claimed he sometimes paid
Brad Dunbar on a per square foot of work basis. They had
no entrepreneurial or proprietary interest in the Respondent’s
business, and bore none of the risk of profit or loss. When
they worked for the Respondent, the Respondent told them
where to work, set the priorities on the job, and inspected
their work. It was the Respondent’s practice to have work-
men correct their own mistakes or repair unsatisfactory (in
the Respondent’s sole judgment) work. In the case of Brad
and Frank Dunbar, the Respondent played a major role in
training them how to finish drywall, and undertook to make
sure that they earned sufficient money by increasing their
hourly rate of pay, and, with respect to Brad Dunbar, giving
him a bonus and converting his rate of pay to a cost plus
basis when he was not making sufficient profit, in Respond-
ent’s judgment, on a per-square-foot basis. When he was
paying workmen by the hour, the Respondent expected that
they would work steadily at a satisfactory, to him, rate of
progress. In the case of Timothy Huckin and James Amos,
the Respondent, or his representative, established the time for
lunch and breaks. Overall, as concerned these individuals,
Respondent exercised not only the right to control the results
of the services which they performed for him, but the man-
ner and means by which these individuals performed the
services he assigned to them. Under the right-of-control test,
these individuals were employees of the Respondent, not
independent contractors.
It may well be that others who worked for Respondent
during the relevant period of time were also employees,
under the right-of-control test, and not independent contrac-
tors. However, there is insufficient evidence in the record
concerning the conditions under which they worked for Re-
spondent, and the extent of control he exercised over the
manner and means by which they performed work for him,
to preclude the possibility that they were bona fide independ-
ent subcontractors, or employees of bona fide independent
subcontractors, performing work for the Respondent. As to
these individuals, to the extent they can be identified from
the record in this case, I find that the General Counsel has
failed to meet the burden of proving by a preponderance of
the evidence that they were employees.
CONCLUSIONS OF LAW
1. Respondent, Jerry Durham Drywall, d/b/a J & S
Drywall, a sole proprietorship owned by Jerry Durham, is an
employer within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Brotherhood of Painters and Allied Trades,
Local 203, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Since on or about September 27, 1986, in violation of
Section 8(a)(1) and (5) of the Act, Respondent has failed and
refused to abide by, and continue in full force and effect, all
of the terms of the collective-bargaining agreement into
which the Respondent entered with the International Brother-
hood of Painters and Allied Trades, Local 203 (the Union),
on July 29, 1985, and which, by its terms, did not expire
until March 31, 1987, specifically:
(a) Since on or about September 27, 1986, and throughout
the period covered by the collective-bargaining agreement,
Brad Dunbar was an employee of the Respondent, within the
meaning of the Act, and a member of the collective-bargain-
ing unit for which the Union was the exclusive collective-
bargaining representative under the collective-bargain agree-
ment which the Respondent and the Union signed on or
about July 29, 1985.
(b) Since on or about September 27, 1986, and throughout
the period covered by the collective-bargaining agreement,
Frank Dunbar was an employee of the Respondent, within
the meaning of the Act, and a member of the collective-bar-
gaining unit for which the Union was exclusive bargaining
representative under the collective-bargaining agreement
which the Respondent and the Union signed on or about July
29, 1985.
(c) Since on or about mid-December 1986, until their em-
ployment by the Respondent terminated, Timothy Huckin
and James Amos were employees of the Respondent, within
the meaning of the Act, and were members of the collective-
bargaining unit for which the Union was the exclusive bar-
gaining representative under the collective-bargaining with
the Respondent and Union signed on or about July 29, 1985.
(d) Since on or about September 27, 1986, in violation of
Section 8(a)(1) and (5) of the Act, the Respondent has failed
to deduct and social security taxes for its employees, as spec-
ified in the collective-bargaining agreement of on or about
July 29, 1985; failed to pay its employees according to the
hourly scale (wage) specified in the collective-bargaining
agreement; failed to contribute monthly the amount specified
in the collective-bargaining agreement to the Union’s Ap-
prenticeship Training Fund; and, failed to contribute monthly
the amount specified in the collective-bargaining agreement
to the Union’s health and welfare fund.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section (2)(6) and (7) of the Act.31
REMEDY
Having found that the Respondent, Jerry Durham Drywall,
d/b/a J & 5 Drywall, a sole proprietorship owned by Jerry
Durham, has engaged in certain unfair labor practices, I find
39J & S DRYWALL
32 In accordance with the Board’s decision in New Horizons for the Re-
tarded, supra, interest on and after January 1, 1987, shall be computed at the
‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. Section 622. Interest on amounts accrued prior to
January 1, 1987, the effective date of the amendments to 26 U.S.C. § 6221,
shall be computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
that the Respondent must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent, having engaged in certain unfair labor prac-
tices in violation of Section 8(a)(1) and (5) of the Act, shall
be ordered to cease and desist from engaging in these unfair
labor practices.
Respondent, having violated Section 8(a)(1) and (5) of the
Act, failing to comply with the provisions of the collective-
bargaining agreement into which it entered with the Union
on or about July 29, 1985, shall be required to comply with
all provisions of the agreement, as they affect the Respond-
ent’s employees and the Union, and shall make whole the
employees for any loss of earnings, and the Union for any
losses of contributions to its Apprenticeship Training Fund
and Health and Welfare Fund, during the period from Sep-
tember 27, 1986, until March 31, 1987, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).32
[Recommended Order omitted from publication.]