Taylor Ridge Paving and Construction, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 21, 2015

25-CA-135372 (N.L.R.B. Sep. 21, 2015)

JD–53–15
Taylor Ridge, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TAYLOR RIDGE PAVING AND
CONSTRUCTION
and Case 25–CA–135372
LOCAL UNION NO. 309, LABORERS’
INTERNATIONAL UNION OF NORTH AMERICA
Rebekah Ramirez, Esq.
for the General Counsel.
Michael E. Avakian, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case was tried in Peoria, Illinois on
February 12, 2015. Local Union No. 309, Laborers’ International Union of North America (the
Union) filed the charge on August 26, 2014,1 and the General Counsel issued the complaint on
November 25. The complaint alleges that Taylor Ridge Paving & Construction2 (Respondent)
violated Sections 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to
adhere to a collective-bargaining agreement.3 GC Exh. 1(c). Respondent timely filed an answer
to the complaint denying the alleged violation of the Act and asserting several affirmative
defenses. GC Exh. 1(e). Respondent later filed an amended answer. GC Exh. 1(f). The parties
were given a full opportunity to participate, to introduce relevant evidence, to examine and cross-
examine witnesses, and to file briefs. On the entire record, including my own observation of the
demeanor of the witnesses,4 and after considering the briefs filed by the parties, I make the
following

1 All dates are in 2014 unless otherwise indicated.
2 The name of Respondent appears as corrected at the hearing.
3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R. Exh.” for Respondent’s
Exhibit; “GC Exh.” for General Counsel’s Exhibit; “R. Br.” for Respondent’s brief; and “GC Br.” for the
General Counsel’s brief.
4 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible testimony
and evidence presented at trial, as well as logical inferences drawn therefrom.
JD–53–15
2
FINDINGS OF FACT
I. JURISDICTION5
Respondent, a corporation, admits that it has been engaged in the construction industry as a
provider of asphalt and paving services at its facility in Taylor Ridge, Illinois, where it annually
performs services valued in excess of $50,000 in States other than the State of Illinois. GC Exh.
1(f). I find that Respondent is an employer engaged in commerce within the meaning of Section 10
2(2), (6), and (7) of the Act.5
In its answer, Respondent denied knowledge or information sufficient to form a belief as to
the statutory labor organization status of Local Union No. 309, Laborers International Union of
North America (Union). Section 2(5) of the Act defines a labor organization as, “any 15
organization of any kind, or any agency or employee representation committee or plan, in which
employees participate and which exist for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rate of pay, hours of employment, or
conditions of work.” Brad Long, the Union’s business manager, testified without contradiction
that the Union negotiates contracts, enforces contracts, and protects its members. Jeffrey Deppe, 20
the Union’s secretary-treasurer, testified without contradiction that he tries to resolve problems
for employees on the job. General Counsel’s Exhibit 2 is a contract between the Union and the
Associated Contractors of the Quad Cities (Associated Contractors), concerning matters such as
employee wages and hours of employment. Therefore, I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.6 25
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operations
30
Respondent is a paving and asphalt contractor in the construction industry. Respondent
generally operates for 7 to 8 months a year, based on the weather.7 Tr. 27. Respondent stopped
working in December 2014, and had not restarted its operations as of the date of the hearing. Id.
Lindsey Dowell is Respondent’s president and a 51 percent owner of Respondent. She had no
previous experience in the construction industry before starting Respondent in 2011. Lindsey 35
Dowell also holds a full-time position as a human resources specialist for the Federal
Government at the Rock Island Arsenal. Lindsay Dowell’s husband, Chris Dowell, is
Respondent’s vice president and a 49 percent owner of Respondent. Chris Dowell runs
Respondent’s day-to-day operations, bid jobs and finds work, and performs paving work
alongside Respondent’s employees. He also has extensive experience as a laborer and was 40
previously a member of the Union. Respondent admits, and I find, that Lindsay Dowell and

5 Employers engaged in nonretail enterprises, such as Respondent, meet the Board’s discretionary
jurisdictional standard if they have either inflow or outflow, whether direct or indirect, in excess of
$50,000 annually. Siemons Mailing Service, 122 NLRB 81, 85 (1959).
6 The Union’s territorial jurisdiction encompasses Rock Island and Mercer Counties in Illinois and
Scott, Clinton, and Muscatine Counties in Iowa. Tr. 37.
7 Average low temperatures must be above freezing for Respondent to perform paving work. Tr. 27.
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3
Chris Dowell are supervisors of Respondent within the meaning of Section 2(11) of the Act and
agents of Respondent within the meaning of Section 2(13) of the Act.
A. Respondent becomes a Signatory Contractor
5
When Chris Dowell formed Respondent, he decided to do so as a union shop. Tr. 29. As
such, Respondent was able to obtain employees through the Union’s hiring hall. Dowell met
with Union Business Manager Brad Long three times prior to Respondent becoming a signatory
contractor. Tr. 38. During these meetings, Brad Long went over the Union’s collective-
bargaining agreement and a memorandum of agreement. Brad Long gave these documents to 10
Chris Dowell to take home. Chris Dowell brought the documents home where Lindsay Dowell
signed them. Chris Dowell later returned the executed agreements to the Union.8
Respondent also signed an agreement with the International Union of Operating Engineers,
Local 150 (Local 150), to obtain employees from its hiring hall. Respondent later terminated its 15
relationship with Local 150. According to reports filed with Local 150, Respondent employed
up to 2 operators between December 2013 and March 2013, but one or both of these operators
worked less than 5 hours per month. Beginning in April 2013, and continuing through
November 2013, Respondent employed 2 operators with significant hours. December 2013 was
the last month for which Respondent provided reports to Local 150. R. Exh. 13. 20
B. The Collective-Bargaining Agreement and Memorandum of Agreement
On January 23, 2012, Lindsay Dowell signed the Articles of Agreement between the
Associated Contractors and the Union (the Agreement) on behalf of Respondent. GC Exh. 2. 25
By signing the Agreement, Respondent became a signatory employer. Regarding its duration
and termination, the Agreement states:
Art. 38, Sec. 1. This Agreement shall be in force and effect from January 1, 2008,
through December 31, 2012, and shall renew from year to year, unless either party 30
serves written notice upon the other of intent to modify or terminate the
Agreement not less than sixty (60) days prior to any expiration date. Upon notice
of termination or modification the parties shall promptly commence negotiations
for the purpose of reaching a new or modified agreement. (Emphasis added.)
35
October 2, 2012, was 60 days prior to the Agreement’s December 31, 2012 expiration date.
The Agreement covers, among other work, construction of and improvements to parking lots
and pavements. GC Exh. 2, p. 1. The Agreement further gives the Union jurisdiction over all
laborers’ work, including the following: unloading of all materials; the use of roller compactors; 40
loading and unloading all concrete buckets/trucks; and the use of small power equipment. GC

8 Lindsay Dowell and Chris Dowell testified that they barely read and did not understand the
agreements she signed. However, a party who signs a contract is bound by its terms regardless of whether
he or she reads it or considers its legal consequences. GEM Management Co., 339 NLRB 489, 498 fn. 22
(2003), citing Operating Engineers Pension Trust v. Cecil Backhoe Svcs., 795 F.2d, 1501, 1505 (9th Cir.
1986).
JD–53–15
4
Exh. 2, art. 17. The following job classifications, among many others, are listed in Article 31 of
the Agreement: broom man; operation of tampers; general labor (not covered elsewhere); roller
compactors; asphalt raker or luteman; and asphalt or concrete curb machine operator.9
The following language appears on the signature page of the Agreement: “The undersigned 5
Employer hereby becomes a signatory Employer to this Agreement between the Associated
Contractors of the Quad-Cities and the Laborers’ International Union of North America, Local
Union No. 309.” GC Exh. 2, p. 42.
Lindsay Dowell also signed a Memorandum of Agreement (MOA) with the Great Plains 10
District Council, affiliated with the Laborers’ International Union of North America, AFL–CIO,
(the District Council) on January 23, 2013. GC Exh. 19. By entering into this MOA,
Respondent recognized the District Council as the sole and exclusive bargaining representative
for all laborers employed by Respondent in the geographical areas encompassed by the listed
local unions and adopted collective-bargaining agreements between the District Council and 15
several employer associations, including the Associated Contractors. One of the listed local
unions is the Union. Specifically, the MOA states:
The EMPLOYER herein adopts all of those Collective Bargaining Agreements
between the UNION and . . . the Associated Contractors. 20
The EMPLOYER and the UNION agree to be bound by the area-wide negotiated
contracts with the various Associations, incorporating them into this
Memorandum of Agreement and extending this Agreement for the life of the
newly negotiated contract, if not notified within the specified period of time. 25
The MOA was effective through April 30, 2013. However, the MOA stated that it would
continue thereafter unless sixty (60) days written notice was given, by registered or certified
mail, by either party of the desire to modify or amend it. By signing the MOA, Respondent
agreed to be bound by the Agreement and to extend the life of the MOA for the life of the 30
Agreement and any newly negotiated contract, if notification of intent to terminate or modify the
MOA was not given within the specified period of time. Respondent did not give notice of intent
to terminate the MOA by March 1, 2013, 60 days prior to April 30, 2013.
Prior to the expiration of the Agreement on December 31, 2012, the Union and the 35
Associated Contractors began negotiations for a successor agreement. This successor agreement
is effective from January 1, 2013 through December 31, 2015. GC Exh. 6. All of the same
language cited above concerning job classifications and jurisdiction appears in the successor
agreement. Respondent did not sign the successor agreement.
40
C. Respondent’s Hiring and Crew
Respondent began operations in the Spring of 2012. At that time, Respondent rented its
equipment, including an excavator and skid loader. More recently, Respondent has acquired an
asphalt paving machine. R. Exh. 14; Tr. 186–187. 45

9 A luteman uses a lute, a long-handled instrument that looks like a rake.
JD–53–15
5
In its first year of operations, Respondent employed two laborers hired through the Union’s
hiring hall. GC Exh. 3. According to contribution reports filed with the Union, Respondent
employed 2–3 union laborers at a time in 2012. GC Exh. 3. Chris Dowell is listed as one of these
laborers. 5
From January and April 2013, Respondent listed only one laborer on its contribution reports
(employee Jackie West) and it listed no union laborers in February and March 2013.10 In May
through December 2013, Respondent’s contribution reports to the Union listed Chris Dowell and
Jackie West as laborers. GC Exhs. 4, 20. 10
Respondent continued to submit contribution reports to the Union through November 2013.11
These report forms, which were submitted and signed by Chris Dowell, included the language,
“the signature certifies this report is correct and [Respondent] hereby . . . continues as a signatory
employer.” Moreover, the November 2013 report has a box checked indicating that Respondent 15
wanted the Union to send it additional contribution report forms. Respondent has not sought
referrals for employees from the Union or submitted any reports, dues, or benefit payments to the
Union since January 2014. Tr. 174.
Beginning in January 2014, Respondent began operating with what Chris Dowell called a 20
“composite crew.” Tr. 185–186; 199. At that point, Dowell no longer classified his employees as
laborers or operators. Instead, Dowell cross-trained laborers as operators and operators as
laborers. Chris Dowell testified that he could not have used a composite crew as a signatory
contractor with the Union or Local 150. Tr. 199.
25
Chris Dowell further testified regarding the makeup of Respondent’s employee compliment
during 2014. He testified that one of Respondent’s employees, Alex Johnson, was a college
student and part-time employee. Tr. 183. He further testified that another employee, Eric
Holcomb, was a supervisor. Tr. 195–196. Respondent did not submit any other evidence, such as
payroll records or personnel files, to support Dowell’s assertions regarding the status of either 30
Johnson or Holcomb or the number of employees employed by Respondent in 2014.
D. Respondent Seeks to Terminate its Relationship with the Union
In October 2013, Lindsey Dowell sent a letter to the Union indicating that Respondent “has 35
determined to terminate our contract with Laborer’s Local 309 effective at the end of the contract
on 31 December 2013.” R. Exh. 1. She did not indicate whether Respondent sought to terminate
the Agreement or the MOA or both.

10 Testimony established that Respondent generally does not operate in the winter months.
11 Respondent’s reports were not received by the Union for some time after the dates appearing on
them. The September 2013 report was not received by the Union until November 1, 2013, the October
2013 report was not received by the Union until December 12, 2013, and the November 2013 report was
not received by the Union until January 27, 2104.
JD–53–15
6
Respondent sent a second letter to the Union on January 23, 2014, providing what it asserted
was 60 days’ notice to terminate the Agreement and MOA with the Union effective April 30,
2014. GC Exh. 7; R. Exhs. 2, 3. Specifically, the letter stated:
This letter is to provide you with the required 60 day notice that Taylor Ridge 5
Paving and Construction has determined to terminate our contract and the
Memorandum of Agreement with Laborer’s Local 309 effective at the end of the
contract and/or Memorandum of Agreement on 30 April 2014.
As of the date of Respondent’s January 23 letter, the successor agreement was already in effect.10
After receiving Respondent’s January 23 letter, Brad Long called Chris Dowell. Tr. 48.
Dowell told Long he was mad about being charged a late fee.12 Dowell said he was no longer
going to pay benefits and that he “wanted out” of the agreement. Long told Dowell it doesn’t
work that way, you have to follow the CBA.13 Tr. 48–49. 15
On January 28, Lindsey Dowell called the Union and spoke to Brad Long. Tr. 49. After
introducing herself, Lindsey Dowell said that she does this for a living on the Arsenal and that
she is an expert. Lindsey Dowell further stated that she knows what the labor rules are and that
she was certain she could get [Respondent] out of the Agreement. Long told her it doesn’t work 20
that way.14
In late March or early April 2014, Brad Long called Chris Dowell seeking to refer
Respondent a small asphalt job. Tr. 50. In that conversation, Dowell stated, “as far as [I am
concerned], [Respondent] did not have an agreement . . . with [the Union]. Tr. 50. Long replied, 25
“I believe we do.”
On April 29, Lindsey Dowell sent yet another letter to the Union. GC Exh. 8; R. Exhs. 5–8.
In this letter, Lindsey Dowell stated that she had spoken to an employee at the NLRB and that
Respondent had no obligation to bargain with the Union. She stated that Respondent had only 30
one laborer employed at that time, Chris Dowell, and that he was also vice president and part
owner of the company. She concluded by stating that Respondent was terminating the
bargaining relationship with the Union effective immediately. On May 2, Brad Long sent a
response to Lindsey Dowell’s letter. GC Exh. 9. Long indicated that the Union was attempting
to determine whether Respondent’s attempt to terminate the Agreement was timely and lawful. 35
On May 11, the Union sent a letter to Respondent. GC Exh. 10. In this letter, Brad Long
stated that after consulting with the Union’s attorney, it was clear that Respondent remained

12 Respondent had been late in remitting payments to the Union was charged a late fee.
13 I credit the testimony of Brad Long over that of Chris Dowell regarding this telephone
conversation. Dowell testified that during this call he told Long that “he was done.” Tr. 174. He further
testified that he told Long that Respondent did not need the Union for hiring anymore and did not need
benefits. Long’s account was more specific than that of Dowell. Dowell’s testimony did not recount
what was said during the conversation, only the type of discussion and generalities regarding what was
discussed. Tr. 174–175. Therefore, I credit Brad Long’s version of the conversation, as set forth herein.
14 Lindsey Dowell denied having a telephone conversation with Long in January 2014. However, I
credit the testimony of Long, as I found him to be a more credible witness, as discussed infra.
JD–53–15
7
signatory to the successor agreement, which did not expire until December 31, 2015. He also
indicated that the Union had begun monitoring Respondent’s work and noticed a few employees.
Therefore, Long believed that Lindsey Dowell’s statement that Respondent employed only one
laborer was inaccurate.
5
E. Respondent’s Work in the Union’s Jurisdiction after Seeking to Terminate its
Relationship with the Union
After receiving Lindsey Dowell’s April 29 letter, the Union sent Secretary-Treasurer and
Field Representative Jeffrey Deppe and now retired Organizer and Field Representative George 10
Long to investigate Respondent’s work.15 Deppe observed Respondent’s crew working at
Kimberly Dodge, a car dealership, for 2 to 3 hours. Tr. 115–116. Deppe was met by Chris
Dowell at this jobsite. Deppe asked Dowell if the guys working there were laborers, to which
Dowell replied no. Tr. 115. Deppe then took pictures of the jobsite. GC Exh. 15. While there,
he observed a tandem truck pouring asphalt into a paver. He also observed 3 individuals on the 15
ground, 2 with lids, and 1 with a shovel scraping asphalt out of the tandem truck and keeping the
edges of the asphalt square. He saw Chris Dowell using a whacker to pack the asphalt. Deppe
testified, without contradiction, that the work he saw being performed was laborers’ work.
George Long also observed Respondent’s crew working at Kimberly Dodge. Tr. 148–151. 20
He observed three individuals spreading and rolling rock in preparation for laying asphalt. Later,
he observed 5–6 men laying blacktop and rolling. George Long testified that he observed the
men using a lute, adjusting the paver and compactor, shoveling, and cleaning up, all of which he
characterized, without contradiction, as laborers’ work.
25
Deppe later observed Respondent’s employees working on two other jobsites. At Co-Op
Records in Moline, Illinois, Deppe observed Respondent operating with a 5-person crew. Tr.
117. He did not talk to anyone at this jobsite. Deppe observed Chris Dowell and another
individual operating a paver, and three other individuals on the ground keeping the edges of the
asphalt square and whacking the asphalt. 30
At a shopping center on 53rd Street in Bettendorf, Iowa, Deppe observed Respondent
operating with a 5-person crew. Tr. 118. Again, he observed three individuals using lutes, come-
alongs, and whackers.16 Deppe testified that the workers running the paver would not be

15 George Long is not related to Brad Long.
16 The General Counsel introduced Deppe’s photographs of the Co-Op Records and shopping center
jobs into evidence as GC Exhs. 13 and 14. After the admission of these exhibits, it was learned that the
Union did not provide the photographs in GC Exhs. 13 and 14 to Respondent, despite Respondent’s
subpoena request for photographs. The Union provided Respondent with a memory card in response to
the subpoena, but only the photographs from GC Exh. 15, and a few additional photographs, were on it.
As such, I struck GC Exh. 13 and 14 and placed both exhibits into a rejected exhibit file. I advised the
General Counsel that she could introduce the additional photographs from the memory card provided to
Respondent, but she did not move to admit the additional photographs. I also advised the General
Counsel that she could examine witnesses further regarding their observation of the jobsites because the
photographs were no longer in evidence. Although I struck the photographs as exhibits, I did not strike
the testimony given regarding what was observed on these jobsites, and that testimony remains in the
record.
JD–53–15
8
performing laborers’ work, however, the use of lutes, shovels, and a whacker, and scraping
trucks, was laborers’ work.
During the last week of June, George Long observed Respondent’s 4–5 person crew working
at Cavanaugh’s Tavern, located 4–5 blocks from the Union’s Davenport, Iowa office. Long 5
observed the crew digging out blacktop, bringing in new gravel, compacting, and paving, all of
which he characterized as laborers’ work. Tr. 151–152.
In July 2014, George Long observed Respondent’s 5-person crew at a McDonald’s near the
Quad Cities airport over a period of 3 days. Long observed the crew tearing out and replacing 10
pavement in the drive through lanes.
On May 27, 2014, the Union filed a grievance after Deppe and George Long observed
Respondent operating with 5–6 person crews at the various jobsites in the Quad Cities area. GC
Exh. 11; Tr. 56. The Union alleged that Respondent had violated the Agreement by using 15
nonunion workers to perform union work. The grievance proceeded to hearing on August 20,
but no one from Respondent appeared for the hearing. The Union prevailed on the grievance.17
GC Exh. 11.
III. DISCUSSION AND ANALYSIS20
A. Credibility Analysis
A credibility determination may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, the weight of the respective evidence, established or 25
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in judicial decisions than to believe 30
some, but not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. My credibility
findings are generally incorporated into the findings of fact set forth above.
I found Brad Long to be a credible witness. He testified in a straightforward manner and his
testimony did not waver under cross-examination.18 His recollection of the telephone calls he 35
had with Chris and Lindsey Dowell was specific and sure. As such, I credit Brad Long’s
testimony over that of Chris and Lindsey Dowell.
I also found George Long to be a credible witness. He testified in a deliberate and steady
manner and I did not find his testimony to be embellished in any way. His testimony was not 40
contradicted in any way on cross-examination. I further found Jeffrey Deppe to be a credible

17 Although it was intimated during the trial that Respondent did not receive the grievance, it is clear
that it did. In a letter dated June 18, Lindsey Dowell stated, “[Respondent] has received your grievance
dated May 27, 2014.” GC Exh. 12. She also stated that Respondent considered the grievance invalid and
inappropriate, as Respondent had terminated its bargaining relationship with the Union.
18 Although Long did ask Respondent’s counsel to repeat his questions on occasion, this was because
it was exceedingly noisy in the hearing room due to construction elsewhere in the building.
JD–53–15
9
witness. Deppe’s testimony seemed frank and forthright. His testimony regarding what he
observed at Respondent’s jobsites in 2014 was detailed and specific. Like George Long, he did
not contradict himself under cross-examination. As such, I credit the testimony of George Long
and Deppe.
5
Conversely, I did not find either Chris Dowell or Lindsey Dowell to be a credible witness.
Both gave critical testimony in response to leading questions by Respondent’s counsel. Tr.174–
175, 186, 202, 205–206. Testimony adduced by leading questions on direct examination is
entitled to only minimal weight. H.C. Thompson, Inc., 230 NLRB 808, 809 fn. 2 (1977).
10
In addition, Lindsey Dowell appeared hostile and spoke over the General Counsel during her
examination. She also gave testimony that seemed insincere. For example, she gave the
following testimony regarding the signing of the Agreement and the MOA:
Q: Did you meet with the Union or - -15
A: No, I did not.
Q: Did your husband meet with the Union?
A: You would have to ask him.
Q: Okay. So how did you get this document to sign?
A: My husband brought it to me. 20
Tr. 21. It defies credulity that Lindsey Dowell would not know whether or not her husband (and
business partner) met with the Union, especially in light of the fact that he brought her the
Agreement and the MOA to sign. Therefore, for these reasons, as well as others stated elsewhere
in the decision, I do not credit Lindsey Dowell’s testimony where it conflicts with that of other 25
witnesses.
Chris Dowell also seemed hostile to questioning by the General Counsel and failed to
directly answer her questions. For example, Dowell engaged in the following exchange with the
General Counsel:30
Q: You met with Mr. Long prior to Taylor Ridge signing on with the Union?
A: That’s correct.
Q: And then how long would you say you met with Mr. Long to discuss the
Union contract before you signed it?35
A: How long - -
Q: Yes.
A: Do you mean days or hours or - -
Q: You said - - yeah, you said that you met with him. Did you meet with him
once?40
A: Once that I - - yeah.
Q: Did you recall?
A: Barely.
Q: You don’t recall?
A: I am going to say the one time we came in and signed the contract.45
Q: Okay. But you didn’t sign the contract with your wife.
A: Yes.
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10
Tr. 29–30.
Chris Dowell also contradicted himself during his testimony. For example, he initially
testified that he did not sign the contribution reports that he sent to the Union on Respondent’s 5
behalf. Tr. 169. He later testified that it was “possible” that he signed them but was “not sure.”
Tr. 191. Dowell only admitted signing the forms after being confronted with signed copies by
the General Counsel. GC Exh. 20; R. Exh. 11; Tr. 192.
Furthermore, Chris Dowell gave testimony contradictory to that of his wife. While Lindsey 10
Dowell testified that she signed the Agreement and the MOA at home, Chris Dowell testified
that they “came in and signed the contract.” Tr. 22, 30. Therefore, for the reasons cited here and
elsewhere in this decision, I have credited the testimony of other witnesses over that of Chris and
Lindsey Dowell.
15
B. Respondent is Bound to the Successor Agreement
The Agreement in this case is an 8(f) prehire agreement.19 Under Section 8(f) of the Act,
Congress expressly authorized the negotiation, adoption, and implementation of collective-
bargaining agreements in the construction industry without initial reference to a union’s majority 20
status. John Deklewa & Sons, 282 NLRB 1375, 1380 (1987). Either party is free to repudiate
the collective-bargaining relationship once an 8(f) agreement expires by its terms. GEM
Management Co., 339 NLRB 489, 496 (2003), citing Iron Workers Local 3 v. NLRB, 843 F.2d
770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988). Additionally, an automatic renewal clause
in an 8(f) agreement will be given effect and operates to bind the parties to a continuation of the 25
agreement. GEM Management Co., 339 NLRB at 496, citing Cedar Valley Corp., 302 NLRB
823 (1991), enfd. 977 F.2d 1211 (8th Cir. 1992). Neither employers nor unions who are party to
8(f) agreements are free to unilaterally repudiate such agreements prior to expiration. John
Deklewa & Sons, 282 NLRB at 1385.
30
Employers in the construction industry, which are not members of an employer association,
commonly bind themselves to agreements negotiated between an employer association and a
union by signing what is known as a “me too” or “short form” agreement. GEM Management
Co., 339 NLRB at 496. These “me too” agreements sometimes bind employers to successor
master contracts negotiated between an employer association and a union and are enforced by the 35
Board. Id. The MOA in this case is such an agreement. In signing the MOA, Respondent did
not become a member of the Associated Contractors, but became bound to agreements
negotiated between it and the Union.
The MOA was effective through April 30, 2013. However, the MOA stated that it would 40
continue thereafter unless sixty (60) days written notice was given, by registered or certified

19 Although the complaint mentions a 9(a) relationship in paragraph 5(d), this is not material. In a
preceding subparagraph, the Agreement is correctly identified as an 8(f) agreement. The Board presumes
that a construction industry bargaining relationship is governed by Section 8(f). MSR Industrial Services,
363 NLRB No. 1, slip op at 2 (2015). Additionally, the complaint correctly sets forth all of the elements
of a violation of Section 8(a)(5) and (1) of the Act in paragraph 5. GC Exh. 1(c). Therefore, I find the
reference to Section 9(a) of the Act in the complaint is of no consequence.
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11
mail, by either party of the desire to modify or amend it. Respondent did not give notice to
terminate the MOA by March 1, 2013, 60 days prior to April 30, 2013. Therefore, Respondent
remained bound by the MOA after April 30, 2013.
Furthermore, I find, in agreement with the General Counsel, that the language of the MOA 5
extended both the life of the MOA and bound Respondent to the successor agreement through
December 30, 2015. GC Br. p. 15. The Board has held that an employer was bound to successor
contracts when it signed a supplemental agreement whereby it consented to be bound to area
association agreements until it timely served notice to terminate the agreement. Cedar Valley
Corp., 302 NLRB at 830. Even when an employer has not signed a document delegating 10
bargaining authority to an association, but has signed an association collective-bargaining
agreement with a union providing for automatic renewal, the employer continues to be bound by
the collective-bargaining agreement until it serves timely notice of termination of the agreement.
Id.
15
The Board has even stated that, in such circumstances, the union’s notice of termination of
the contract served on the association does not terminate the contract as to the employer who has
not delegated bargaining rights to the association. Id. citing C.E.K. Mechanical Contractors, 295
NLRB 635, 635 (1989), enf. denied 921 F.2d 350 (1990). In C.E.K Mechanical Contractors, as
here, the employer signed a contract between a union and employer association at a time when it 20
had no employees working in the union’s jurisdiction and was not a member of the employer
association. 295 NLRB at 635. This contract contained an automatic renewal clause, which
extended the length of the contract for 1 year. Id. The Board held that the association’s desire to
change the contract did not preclude the effectiveness of the automatic renewal clause as to the
employer. 295 NLRB at 635–636. Unlike the agreement in C.E.K. Mechanical Contractors, the 25
MOA here specifically stated that absent timely notification of termination, it bind signatories to
“newly negotiated” contracts. As such, I find that Respondent was and remains bound to the
successor agreement.
In determining a party’s obligation under a “me too” agreement, the Board will look to the 30
language of the agreement itself, as well as to the underlying master agreement where applicable.
Id. For example, in Oklahoma Fixture Co., the Board held that an employer was bound to year-
to-year renewals based upon the language contained in an agreement. 333 NLRB 804, 808
(2001), enf. denied 74 Fed. Appx. 31 (10th Cir. 2003). However, the contract in that case stated,
“this agreement shall remain in full force and effect from year to year unless either party 35
[notifies] the other in writing of its desire to . . . cancel . . . this agreement.” The “me too”
agreement in Oklahoma Fixture Co. did not contain any language that bound employers to newly
negotiated contracts. 333 NLRB at 808–809. Instead, the agreements at issue in Oklahoma
Fixture Co. created a year-to-year renewal absent termination. Conversely, the MOA in this case
binds Respondent to “newly negotiated contract[s]” absent notification. GC Exh. 19, para. 8.40
Therefore, Respondent, which failed to timely give notice to terminate either the MOA or the
Agreement, remains bound to the successor agreement through operation of the MOA.
The Agreement stated that it would renew from year to year unless either party served
written notice upon the other of intent to modify or terminate the Agreement, not less than sixty 45
(60) days prior to its expiration date. As the Agreement’s expiration date was December 31,
2012, notice would have been required by October 2, 2012. Respondent did not provide notice
JD–53–15
12
of intent to terminate the Agreement by October 2, 2012. Similarly, the MOA remained in effect
through April 30, 2013, and until sixty (60) days written notice was given of the desire to modify
or amend it. Respondent did not give notice of intent to terminate the MOA by March 1, 2013,
60 days prior to April 30, 2013.20 As such, it remains bound to the MOA.
5
Furthermore, by signing the MOA, Respondent agreed to be bound by the “various
agreements,” including Agreement, which was incorporated into the MOA, and extended the
MOA for the life of the negotiated contract absent timely notice of termination. Respondent did
not give timely notice of termination regarding either the Agreement or the MOA. Moreover, as
the MOA stated that it bound Respondent to newly negotiated contracts between the Union and 10
the Associated Contractors, I find that Respondent became bound and remains bound to the
successor agreement.
C. Respondent Violated the Act by Failing to Adhere to the Agreement
15
As I have found, Respondent operated with what it called a composite crew beginning in
January 2014. In so doing, Chris Dowell acknowledged using operators to perform laborers’
work. Additionally, in 2014 George Long and Jeffery Deppe witnessed Respondent’s 4–6 person
crews working with two or more individuals performing laborers’ work, such as luting,
shoveling, cleaning up, and raking. The testimony of Brad Long and Deppe that the work they 20
observed was laborers’ work stands uncontroverted. Such work is clearly reserved to the Union
through the Agreement and the successor agreement.
Chris Dowell admitted that Respondent could not operate with a composite crew if it was
signatory to an agreement with the Union. As I have found that Respondent remains signatory to 25
the successor agreement between the Union and the Associated Contractors, I further find that
Respondent violated the Act by violating the terms of the successor agreement. In addition to
using nonunion employees to perform union work, Respondent failed to remit dues and benefit
payments for these employees to the Union. Thus, Respondent completely repudiated the
successor agreement. By failing to adhere to the terms of the successor agreement with the 30
Union, Respondent violated Section 8(a)(5) and (1) of the Act. As discussed in greater detail
below, I find no merit in Respondent’s defenses to this violation.
D. Respondent’s 10(b) Defense
35
Respondent asserts that the charge filed by the Union was time barred by Section 10(b) of the
Act. GC Exh. 1(f). Section 10(b) of the Act provides that “no complaint shall be based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with the
Board.” 29 U.S.C. § 160(b). It is well settled that the 6-month limitations period prescribed by
Section 10(b) begins to run only when a party has clear and unequivocal notice, either actual or 40
constructive, of the violation of the Act. Art’s Way Vessels, Inc., 355 NLRB 1142, 1147 (2010).
Thus, a union must file its charge within 6 months of receiving clear and unequivocal notice of
contract repudiation or a complaint based on the conduct will be time-barred, even with regard to
contract violations within the 10(b) period. Vallow Floor Coverings, Inc., 335 NLRB 20 (2001).

20 Respondent seemed to believe that the MOA continued on from year-to-year after April 30, 2013,
but there is no support for this position in the record or within the MOA.
JD–53–15
13
The burden of showing such clear and unequivocal notice is on the party raising the 10(b)
defense. Broadway Volkswagen, 342 NLRB 1244, 1246 (2004). Where a delay in filing is a
consequence of conflicting signals or otherwise ambiguous conduct by that party, a 10(b)
defense will not be sustained. A & L Underground, 302 NLRB 467, 469 (1991); Taylor 5
Warehouse Corp., 314 NLRB 516, 526 (1994), enfd. 98 F.3d 892 (6th Cir. 1996). In order to
trigger Section 10(b), repudiation must be both unequivocal and unconditional. Stage Employees
IATSE Local 659 (Paramount Pictures), 276 NLRB 881, 882 (1985).
The charge in this case was filed on August 26, 2014, therefore, in order to be timely, the 10
violation of the Act could have been committed no earlier than February 26, 2014. I find that
prior to Respondent’s April 29, 2014, letter, the Union did not have clear and unequivocal notice
of Respondent’s contract repudiation and, as such, Respondent’s Section 10(b) defense fails.
The Board has found that a statement of intent or a threat to commit an unfair labor practice 15
does not start the statutory 6-months period running. Leach Corp., 312 NLRB 990, 991 (1993),
citing NLRB v. Al Bryant, Inc., 711 F.2d 543, 547 (3d Cir. 1983). For example, in Leach Corp.,
the Board found that beginning to relocate employees to a new facility did not provide clear and
unequivocal notice, finding that such notice occurred only when the relocation process involving
280 employees was complete. 312 NLRB at 991. Clearly, Respondent’s statements in its letters20
of October 2013 and January 2014 were no more than statements of intent to terminate its
relationship with the Union. I do not find that the statements contained in either letter provided
the Union with clear and unequivocal notice of contract repudiation.
A threat to take action is not a final, unconditional decision, and does not trigger the running 25
of the Section 10(b) period. Stage Employees IATSE Local 659, 276 NLRB at 882. In Stage
Employees IATSE Local 659, the union threatened to inform employers that a member was not
eligible for employment unless he paid his dues and insurance premiums. 276 NLRB at 883.
The Board held that this was not a final and unconditional decision, and that the Section 10(b)
period did not begin to run until the employee was discharged. Id. Analogously, in the instant 30
case, Respondent’s indications that it wished to terminate its relationship with the Union via
letters in October 2013, and January 2014 and telephone calls in January 2014, did not represent
final and unconditional actions.21 Instead, I find that it was not until Respondent’s letter of April
2014, in which it stated that it was “terminating the bargaining relationship with [the Union]
effective immediately,” that Respondent gave clear and unequivocal notice of contract 35
repudiation, thereby triggering the running of the Section 10(b) period.
The earliest potential evidence of repudiation in this case could be found in Chris Dowell’s
telephone conversation with Brad Long in late March or early April 2014. In that conversation,
Dowell stated, “as far as [I am concerned], [Respondent] did not have an agreement . . . with [the 40
Union]. However, I still do not find that this provides clear and unequivocal notice of
repudiation because of Dowell’s use of the qualifying words “as far as I’m concerned.” See

21 Specifically, Lindsey Dowell stated that she was certain she could get Respondent out of the
Agreement and Chris Dowell stated that he wanted out of the Agreement. (Emphasis added.) I find that
Lindsey Dowell’s use of the word “could” and Chris Dowell’s use of the word “wanted” do not constitute
clear and unequivocal notice of contract repudiation.
JD–53–15
14
Stanford Realty Associates Inc., 306 NLRB 1061, 1065 (1992) (finding an employer’s statement
that “as far as she knew [the employer] did not have a contract [with] the union] and she would
await further communication with the union, was not a clear and unequivocal refusal to
bargain).22
5
Additionally, Respondent engaged in conduct that was contrary to a finding of clear and
unequivocal notice prior to the commencement of the Section 10(b) period. Respondent
continued to submit contribution reports to the Union through November 2013, and this final
report was not received by the Union until January 2014. These reports included the language,
“the signature certifies this report is correct and [Respondent] hereby . . . continues as a signatory 10
employer.” Moreover, the November 13, 2013 report has a box checked indicating that
Respondent wanted the Union to send it additional contribution report forms. These actions are
inconsistent with Respondent’s position that it was terminating its bargaining relationship with
the Union. Furthermore, the Union would have had no reason to believe that Respondent was
operating its business in January or February 2014, as Chris Dowell testified that Respondent did 15
not operate during the winter months.
Finally, Respondent’s suggestion that it was acting openly as a nonunion contractor within
the Union’s jurisdiction prior to the 6-month limitations period also fails. The Union had no
reason to know that Respondent was working as a nonunion contractor within its jurisdiction20
until George Long and Jonathan Deppe went to Respondent’s jobsites in May or June 2014. The
Board in Neosho Construction, 305 NLRB 100 (1991), rejected a repudiation by conduct claim
despite 14 years of noncompliance with an 8(f) agreement. Such repudiation requires more than
mere breach of the contract; instead, the noncompliance must be so bald as to put the union on
notice of the employer’s intent to repudiate. 305 NLRB at 102. In Neosho Construction, the 25
judge, affirmed by the Board, found that an employer’s work within a union’s jurisdiction, even
when occasionally observed by that union, was not so sufficiently bald as to put the union on
notice of the employer’s intent to repudiate an 8(f) agreement. 305 NLRB at 103. Similarly, in
the instant case, I do not find that Respondent’s operation within the Union’s jurisdiction prior to
February 26, 2014, placed the Union on notice of Respondent’s repudiation. There is no 30
evidence that any of Respondent’s purportedly nonunion work prior to May 2014 was observed
by the Union. In fact, Respondent provided no evidence Respondent was operating nonunion or
performing any jobs as a nonunion contractor within the Union’s jurisdiction prior to May 2014.
Thus, I find Respondent’s defense that it repudiated the successor agreement by its conduct prior
to February 2014 has no merit. 35
E Respondent’s Single-Person Unit Defense
Respondent asserts as an affirmative defense that the bargaining unit at issue consisted of no
more than a single employee. As stated above, an employer’s repudiation of an 8(f) agreement 40
will generally violate Section 8(a)(5) of the Act. Cedar Valley Corp., 302 NLRB 823 (1991),
enfd. 977 F.2d 1211 (8th Cir. 1992). However, an employer may lawfully repudiate an 8(f)
agreement when there is no more than one employee in the bargaining unit. Seedorff Masonry,
Inc., 360 NLRB No. 107 slip op. at 11 (2014). See also Stack Electric Inc., 290 NLRB 575, 578
(1988), and Seals Refrigeration, Co., 297 NLRB 133, 135 (1989).45

22 In any event, this conversation occurred well within the Section 10(b) period in this case.
JD–53–15
15
It is Respondent’s burden of proof to establish the existence of a stable one-person unit. See
Galicks, Inc., 354 NLRB 295 (2009), remanded on other grounds 188 L.R.R.M. 3024 (6th Cir.
2010). The Board requires proof that the purportedly single employee unit was a stable one, not
merely a temporary occurrence. McDaniel Electric, 313 NLRB 126, 127 (1993).5
In determining the existence of a stable one-person unit, the Board takes into account typical
employment fluctuations in the construction industry. SAS Electrical Services, 323 NLRB 1239,
1252 (1997), citing McDaniel Electric, 313 NLRB 126, 127 (1993). The Board has found that a
period of 17 months with one employee did not establish that the reduction in work force was 10
other than a temporary occurrence. SAS Electrical Services, 323 NLRB at 1251. The Board has
also found that periods of 15 months with 1 journeyman and 16 months with no journeymen did
not establish the existence of a stable, one-person unit. Galick’s, Inc., 354 NLRB at 299.
Analogously, in the instant case, I do not find that periods of a few months at a time with one
laborer establish the existence of a stable one-person unit, especially in light of the fact that 15
Respondent was observed with its crews using more than one employee at a time to perform
laborers’ work in 2014.
As found supra, Respondent has been using other employees to perform work reserved for
the Union in the successor agreement. Respondent’s contribution reports to the Union establish 20
that it employed 2 union laborers at various times in 2012 and 2013. Furthermore, Respondent
has employed a 4–6 person crew while in operation in 2014, and I have found that 2 persons at a
time have been performing work reserved to the Union in the unlawfully repudiated collective-
bargaining agreement. For example, at the Kimberly Dodge jobsite, at least 2 persons were
witnessed performing laborers’ work, such as shoveling and cleaning up. Similar work was 25
observed at the Co-Op Records and 53rd Street shopping center jobs. That these persons are
cross-trained to perform other work is of no moment as they were, in fact, performing laborers’
work. If two or more employees perform bargaining unit work, the situation is not converted
into a “one person unit” if the employer arranges for other employees to perform the work in
question. Seedorff Masonry, Inc., 360 NLRB No. 107 slip op at 1 fn. 1. Respondent cannot 30
escape its obligation to honor its collective-bargaining agreement with the Union by assigning
unit work to other employees in violation of the successor agreement. Accordingly, I find that
Respondent’s single-person unit defense fails.
Moreover, Respondent did not establish that its employees were other than full-time, 35
nonsupervisory employees. Despite Chris Dowell’s testimony, which I have not credited,
Respondent presented no evidence that one member of its crew was a part-time college student.
Respondent further presented no evidence that another of its employees was a statutory
supervisor. It is well-settled that the party asserting supervisory status bears the burden of proof
on the issue by a preponderance of the evidence. Oakwood Healthcare, Inc., 348 NLRB at 694 40
(citing Kentucky River Community Care, 532 U.S. 706, 711–712 (2001)). “[M]ere inferences or
conclusionary statements, without detailed, specific evidence, are insufficient to establish
supervisory authority.” Alternate Concepts, Inc., 358 NLRB No. 38, slip op. at 3 (2012); see
also Avante at Wilson, Inc., 348 NLRB 1056, 1057 (2006) (“[g]eneral testimony asserting that
employees have supervisory responsibilities is not sufficient to satisfy the burden of proof when 45
there is no specific evidence supporting the testimony” (citations omitted)); Golden Crest
Healthcare Center, 348 NLRB 727, 731 (2006). The Board construes a lack of evidence on any
JD–53–15
16
of the elements necessary to establish supervisory status against the party asserting that status.
Brusco Tug & Barge, 359 NLRB No. 43, slip op. at 6 (2012), reaffd. 362 NLRB No. 28 (2015),
citing Dean & Deluca New York, 338 NLRB 1046, 1048 (2003). Therefore, based on a lack of
credible evidence presented by Respondent, I decline to find that Alex Johnson was a part-time
employee or that Eric Holcomb was a supervisor within the meaning of Section 2(11) of the Act.5
F. Respondent’s Other Defenses
In addition to the defenses addressed above, Respondent asserted the following affirmative
defenses in its amended answer to the complaint: that the charge was not served on Respondent 10
by the Charging Party; that the Regional Director served the charge on an improper entity, i.e.
“Taylor Ridge Paving & Construction Co.”; that Respondent has no evidence that a majority of
its employees are represented by the Union and that the Union has never represented a majority
of Respondent’s employees; that Respondent’s actions were protected by Section 8(c) of the Act;
and that Respondent undertook its actions for legitimate nondiscriminatory economic business 15
reasons. GC Exh. 1(f).
The General Counsel moved to amend the complaint at hearing in order to correct the name
of Respondent and Respondent’s counsel did not object. Tr. 12. Clearly, by filing its answer and
amended answer and appearing at the hearing, Respondent received notice of both the charge 20
and complaint in this case. Therefore, I find Respondent’s defense that the Regional Director
served the wrong entity is moot.
Respondent’s defense on the grounds that the charge was served by the Regional Director
and not the Charging Party is similarly unavailing. Section 10(b) of the Act does not provide 25
that the charge must be served solely by the charging party. Phelps Dodge Copper Products,
Corp., 96 NLRB 982, 983 (1951). Moreover, although Section 102.14 of the Rules and
Regulations of the Board places the responsibility for service on the charging party, it also
envisages that service may be effected by the Regional Director. Id. at 98–984. For these
reasons, I reject Respondent’s defense that service of the charge was made improperly by the 30
General Counsel.
Respondent’s majority status defense also fails. As indicated above, the agreement in this
case is an 8(f) agreement, which has no requirement that the Union show majority status. As
such, Respondent’s actions are not excused by the failure of the General Counsel or Union to 35
show majority status among Respondent’s employees.
Respondent’s reliance on Section 8(c) of the Act as justification for its actions is misplaced.
Section 8(c) applies to noncoercive expressions of views about union representation in general or
a specific union, as well as related labor controversies. The Boeing Co., 362 NLRB No. 195 slip 40
op. at 3 (2015) citing NLRB v. Gissel Packing, Co., 395 U.S. 575, 618 (1969) (Under Sec. 8(c),
“an employer is free to communicate to his employees any of his general views about unionism
or any of his specific views about a particular union, so long as the communications do not
contain a ‘threat of reprisal or force or promise of benefit.”’). None of the Respondent’s actions
here constitute a communication to employees or views about unionism and, as such, its Section 45
8(c) defense fails.
JD–53–15
17
In addition, Respondent’s defense of a legitimate nondiscriminatory motivation is simply not
a defense to an alleged violation of Section 8(a)(5) of the Act. See Treanor Moving & Storage
Co., 311 NLRB 371, 386 (1993). There is no allegation that Respondent’s contract repudiation
violates Section 8(a)(3) of the Act and Respondent’s motivation for the repudiation is not at
issue. Therefore, Respondent’s suggestion that its repudiation was nondiscriminatory misses the 5
mark.
G. Cases Relied Upon by Respondent are Distinguishable and Respondent’s Citation to
Supplemental Authority is Without Merit
10
The cases relied upon by Respondent in its brief are distinguishable. For example,
Respondent relies on St. Barnabas Medical Center, 343 NLRB 1125 (2004) in support of its
argument that the complaint in this case is time-barred. In St. Barnabas, the parties had a
collective-bargaining agreement but disagreed as to whether it covered a certain group of
employees. The union demanded inclusion of the disputed employees, but the employer refused 15
to apply the contract to them. 343 NLRB at 1125–1126. The parties engaged in negotiations,
during which the Board found that the employer’s conduct reinforced its position that it did not
consider the disputed employees to be part of the unit. 343 NLRB at 1128. At no time during the
limitations period did the employer apply any term of the contract to the disputed employees, and
never indicated that it would do so. Concluding that the employer had never strayed from its 20
assertion that it did not have to apply the contract to the disputed employees, the Board found
that the charge was time-barred. 343 NLRB at 1128–1129.
However, unlike the employer in St. Barnabas, Respondent did not clearly and unequivocally
repudiate the Agreement, successor agreement, or MOA before the limitations period began on 25
February 26, 2104. Instead, Respondent sent mixed signals by submitting contribution reports
through November 2013, and its use of qualifying language in its letters and telephone calls with
the Union prior to April 2014. Thus, I do not find this case analogous to the situation in St.
Barnabas, and find that the complaint here is not time-barred.
30
Respondent’s reliance on Moeller Bros. Body Shop, 306 NLRB 191 (1992), to argue that the
Union had constructive knowledge of its repudiation of the Agreement and successor agreement
is similarly misplaced. In Moeller Bros., the Board stated that a union must use reasonable
diligence to learn of an employer’s noncompliance with a contract, but also made clear that a
union is not required to police its agreements aggressively to meet the reasonable diligence 35
standard. 306 NLRB at 193. Instead, the Board found that the union in Moeller Bros. needed
only to visit the employer’s single shop and could have determined that the employer was not
complying with minimal effort and mere observation. 306 NLRB at 192. There is no evidence
that Respondent here operated at only one location which could easily be observed by the Union.
Therefore, I find Moeller Bros. Body Shop distinguishable from the instant case. 40
Respondent admits that it is engaged in the construction industry and Respondent’s crews
have been observed operating in both Iowa and Illinois by the Union. Additionally, the Union’s
jurisdiction spans a large area in both Illinois and Iowa. In other cases involving construction
industry employers and multiemployer 8(f) agreements, the Board has found that a union did not 45
have constructive notice of an employer’s repudiation merely because the employer performed
jobs within the union’s jurisdiction. See Baker Electric, 317 NLRB 335, 336 (1995) enfd. 105
JD–53–15
18
F.3d 647 (4th Cir. 1997) (finding no constructive notice of repudiation where during 17-year
period where employer operated nonunion because the employer’s noncompliance was not
sufficiently bald as to put the union on notice of its intent to repudiate the agreements); Neosho
Construction Co., Inc., 305 NLRB 100, 102 (1991) (finding no constructive notice of
construction contractor’s repudiation despite 14-year period of noncompliance). Similarly, in 5
this case, I do not find Respondent’s actions, over a period of less than 2 years, to be so bald as
to have created constructive notice on the part of the Union.
Additionally, A & L Underground, 302 NLRB 467 (1991) is factually distinguishable from
the instant case. In A & L Underground, the Board found clear and unequivocal notice of 10
contract repudiation where the employer always maintained that it signed an agreement with the
union for only a single project. 302 NRB at 467. Furthermore, in A & L Underground, the
employer sent a letter to the union that it was repudiating any agreements with the union
“effective immediately” prior to the commencement of the 10(b) period. Id. The facts in this
case are distinguishable. As I have set forth in detail above, Respondent did not provide clear 15
and unequivocal notice to the Union of its repudiation outside the 10(b) period. Respondent did
not clearly and unequivocally repudiate the contract with the Union until its letter of April 29,
2014. Instead, Respondent provided less than clear communications, indicated that it intended to
terminate its relationship with the Union in the future, and submitted contribution reports, the last
of which was not received by the Union until January 2014, prior to the commencement of the 20
Section 10(b) limitations period. Thus, Respondent’s actions in this case are not equivalent to
those of the employer in A & L Underground and I find that case distinguishable from the instant
case.
I also find Respondent’s reliance on Ducane Heating Corp., 273 NLRB 1389 (1985), enfd. 25
mem. 785 F.2d 304 (4th Cir. 1986), in support of its limitations defense misplaced. Ducane
Heating involved application of the 10(b) statute of limitations to suspensions of an employee.
273 NLRB at 1390. In that case, a Regional Director’s resurrected of a long-dismissed charge,
allegedly based on the discovery of new evidence. Id. at 1391. The Board restated its adherence
to the longstanding rule that a charge, dismissed or otherwise disposed of, may not be reinstated 30
outside the 6-month limitations period of Section 10(b) absent special circumstances in which a
respondent fraudulently conceals the operative facts underlying the alleged violation. Id. at 1390.
Circumstances similar to those in Ducane Heating Corp. simply do not exist in this case. Thus, I
find that Ducane Heating has no application to the instant case and does not support
Respondent’s 10(b) argument. 35
The case of James Luterbach Construction Co., 315 NLRB 976 (1994), does not support
Respondent’s argument that upon the expiration of the Agreement, Respondent was no longer
bound by any successor agreement. R. Br. pp. 27–28. Initially, I note that the Board recognized
in that case that an employer may obligate itself to successor agreements, as Respondent did here 40
by operation of the MOA. 315 NLRB at 978. By contrast, employers who have an 8(f)
relationship with a union do not have an obligation to bargain for a successor contract. Id.
However, unlike in James Luterbach Construction, Respondent here agreed to bind itself to
successor agreements by the operation of the MOA. Therefore, I find James Luterbach
Construction distinguishable from this case. 45
JD–53–15
19
Respondent cites E.S.P. Concrete Pumping, Inc., 327 NLRB 711 (1999), for the proposition
that an employer has no obligation to maintain the status quo after the expiration of an 8(f)
agreement. R. Br. p. 28. In that case, the Board found an employer’s repudiation of an 8(f)
contract, which was not reduced to writing, unlawful. 437 NLRB at 713. The respondent had
been a sole proprietorship when it signed an 8(f) agreement with a union. 327 NLRB at 711. The 5
sole proprietorship was later dissolved and the respondent incorporated. Id. The respondent in
that case did not sign any agreements with the union after incorporating. Id. The Board held that
the respondent in that case adopted the same 8(f) agreement it had signed when it was a sole
proprietorship by its conduct, including holding itself out as a union contractor, and found its
later repudiation of that agreement unlawful. 327 NLRB at 714. Thus, Respondent’s reliance on 10
this case in support of its argument that it had no obligations to the Union after the Agreement
expired is misplaced.
Respondent further cites Garman Construction Co., 287 NLRB 88 (1987), in support of its
argument that it was not bound by any successor agreement with the union after the Agreement15
expired. R. Br. p. 28. Initially, it is worth noting that, to the extent it was inconsistent with
E.S.P. Concrete Pumping, discussed supra, Garman Construction Co., was overruled. 327
NLRB at 712. Secondly, the Garman Construction case is distinguishable from the instant case.
In Garman Construction, the employer never had more than one employee during the 3-year
period prior to its repudiation of the contract. 287 NLRB at 89. However, in the instant case, I 20
have found that Respondent employed more than one laborer at various times during the 2 years
prior to its contract repudiation and, more importantly, Respondent was observed during 2014
using more than one employee to perform laborers’ work. Additionally, in Garman
Construction, the employer gave timely notice of its withdrawal from a multiemployer
bargaining association at the time that the association’s contracts with three unions were 25
expiring. 287 NLRB at 88. In this case, however, Respondent did not provide timely notice of
its intent to terminate either the Agreement or MOA and became bound to the successor
agreement. Thus, I find the Garman Construction case distinguishable from the instant case.
On April 10, 2015, Respondent submitted a document entitled, “Notice of Supplemental 30
Authority,” in which it cited International Union of Operating Engineers Local 18 (Donley’s,
Inc.), 2015 WL 1619963 (2015) for the proposition that the agreement herein rolled over from
year-to-year. Initially, I would note that the cited case is an Administrative Law Judge’s
decision, which remains before the Board on exceptions and is not precedential. Additionally, in
agreement with the General Counsel, I find that the case is factually distinguishable from the 35
instant case in that it dealt with violations of Section 8(b)(4)(ii)(D). Instead, as I have found
above, Respondent bound itself to the successor agreement between the Union and the
Associated Contractors by operation of the MOA.
Therefore, for the reasons cited herein, I find that Respondent violated Section 8(a)(5) and 40
(1) of the Act by failing to adhere to the Agreement and the successor agreement, and that
Respondent’s defenses to the violation are without merit.
As I have found merit to the complaint, Respondent’s request for attorney’s fees from the
Board, under the Equal Access to Justice Act, 5 U.S.C. § 504 and Section 102.143 of the Board’s 45
Rules and Regulations, is denied.
JD–53–15
20
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
5
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By repudiating the collective-bargaining agreement between Local Union No. 309,
Laborers’ International Union of North America and the Associated Contractors of
the Quad-Cities, Respondent has engaged in unfair labor practices affecting 10
commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
15
Having found that the Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. I recommend that the Respondent be ordered to honor and comply with the
terms of the collective-bargaining agreement between the Union and Associated Contractors of
the Quad-Cities, effective for the period January 1, 2013, through December 31, 2015. 20
Respondent shall also make whole the unit employees for any loss of earnings or other
benefits suffered as a result of Respondent’s unlawful repudiation of the collective-bargaining
agreement with the Union. The make-whole remedy shall be computed in accordance with Ogle
Protection Service, Inc., 183 NLRB 682 (1970), with interest at the rate prescribed in New 25
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
Respondent shall make all contractually required contributions to the Union’s fringe benefit
funds it has failed to make since April 29, 2014, including any additional amounts due the funds 30
in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Moreover,
Respondent shall reimburse the unit employees for any expenses resulting from its failure to
make the required contributions, as set forth in Kraft Plumbing & Heating, Inc., 252 NLRB 891,
891 fn. 2 (1980), enfd mem. 661 F.2d 940 (9th Cir. 1981). Such amounts shall be computed in
accordance with Ogle Protection Service, 183 NLRB 682 (1970), with interest at the rate 35
prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
Finally, Respondent shall compensate the unit employees for any adverse income tax
consequences of receiving their backpay in one lump sum and file a report with the Social 40
Security Administration allocating the backpay to the appropriate calendar quarters for each
employee, in accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014).
JD–53–15
21
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
ORDER
5
The Respondent, Taylor Ridge Paving & Construction, Taylor Ridge, Illinois, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
10
(a) Failing and refusing to bargain in good faith with the Union, Local Union No. 309,
Laborers’ International Union of North America, as the collective-bargaining
representative of all employees performing work as set forth in article 2 of the collective-
bargaining agreement between the Union and the Associated Contractors of the Quad-
Cities, which is effective from January 1, 2013 through December 31, 2015.15
(b) 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.20
(a) Honor and comply with the terms and conditions of the current collective-bargaining
agreement between the Union and the Associated Contractors of the Quad-Cities,
effective from January 1, 2013, through December 31, 2015, and, absent timely written
notice to the Union, any automatic renewal or extension of it. 25
(b) Make whole all affected bargaining unit employees for any loss of earnings and other
benefits suffered as a result of Respondent’s failure to honor the collective-bargaining
agreement, in the manner prescribed in the remedy section of this decision.
30
(c) Make all contractually required contributions to the Union’s fringe benefit funds that
Respondent has failed to make since April 29, 2014, and reimburse the unit employees,
with interest, for any expenses resulting from its failure to make the required payments
under the collective-bargaining agreement, in the manner prescribed in the remedy
section of this decision. 35
(d) Compensate the unit employees for any adverse tax consequences of receiving a lump-
sum backpay award, and file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters for each employee.
40
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards,

23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–53–15
22
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in Taylor Ridge, Illinois, 5
copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms
provided by the Regional Director for Region 25, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper notices, the notices shall 10
be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business 15
or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since April 29, 2014.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn 20
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. September 21, 201525
Melissa M. Olivero
Administrative Law Judge30

24 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 Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–53–15
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to bargain in good faith with the Union, Local Union No.
309, Laborers’ International Union of North America, as the exclusive collective-bargaining
representative of all employees performing work as set forth in article 2, of the collective-
bargaining agreement between the Union and the Associated Contractors of the Quad-Cities
(Associated Contractors), which is effective from January 1, 2013, through December 31, 2015.
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 honor and comply with the terms and conditions of the 2013–2015 collective-
bargaining agreement between the Union and the Associated Contractors, and, absent timely
written notice to the Union, any automatic renewal or extension of it.
WE WILL make whole all bargaining unit employees for any loss of earnings and other
benefits suffered as a result of our failure to honor the collective-bargaining agreement.
WE WILL make all contractually required contributions to the Union’s fringe benefit funds
that we have failed to make since April 29, 2014, and reimburse our employees, with interest, for
any expenses resulting from its failure to make the required payments under the collective-
bargaining agreement.
WE WILL compensate all unit employees adversely affected for any adverse income tax
consequences of receiving a lump-sum backpay award, and WE WILL file a report with the
Social Security Administration allocating the backpay award to the appropriate calendar quarters
for each employee.
JD–53–15
TAYLOR RIDGE PAVING &
CONSTRUCTION
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-135372 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (317) 226-7413.