NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Laborers’ International Union of
February 6, 2008
By Members Liebman and Schaumber
On November 16, 2006, Administrative Law Judge Burton Litvach issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. The General Counsel and the Charging Party filed cross-exceptions and supporting briefs.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and briefs and has decided
to affirm the judge’s ruling, findings,1
and conclusions and to adopt the recommended
Order2 as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Laborers’ International Union of North America, Local Union No.
169,
1. Cease and desist from
(a) Refusing to meet and bargain with Frehner Construction Co., Inc., as the exclusive bargaining representative of the employees in the following appropriate unit:
All full-time and regular part-time laborers employed by the Employer in the State of Nevada, except Clark County, Lincoln County, the town of Tonopah, and the portions of Nye County and Esmeralda County lying south of Highway Six (U.S. 6); excluding all managers, salespersons, estimators, office clerical employees, all other employees, guards, and supervisors as defined in the Act.
(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, meet and bargain with Frehner Construction Co., Inc., with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.
(b) Within 14 days after service by the Region, post at
its union office and hiring hall facility in
(c) Sign and return to the Regional Director sufficient copies of the notice for posting by Frehner Construction Co., Inc., if willing, at all places where notices to employees are customarily posted.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible agent or representative on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Members
Posted by Order
of the
National Labor Relations
Board
An Agency of the
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 on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not refuse to meet and bargain with Frehner Construction Co., Inc., as the exclusive bargaining representative of the employees in the following appropriate unit:
All full-time and regular part-time laborers employed by the Employer in the State of Nevada, except Clark County, Lincoln County, the town of Tonopah, and the portions of Nye County and Esmeralda County lying south of Highway Six (U.S. 6); excluding all managers, salespersons, estimators, office clerical employees, all other employees, guards, and supervisors as defined in the Act.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will on request, meet and bargain with Frehner Construction Co., Inc., with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.
Laborers’ International Union of
D. Criss Parker, Esq., for the General Counsel.
Michael E. Langton, Esq. (Law Offices of
Michael E. Langton), of
James T. Winkler, Esq. (Littler Mendelson), of
DECISION
statement of the case
Findings of Fact
i.
jurisdiction
At all times material herein, Frehner, a State of
ii. labor
organization
Respondent is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.
iii. the
issues
The instant complaint alleges that Respondent engaged in acts and conduct violative of Section 8(b)(3) of the Act by, since on or about July 22, 2005, failing and refusing to meet with Frehner with respect to negotiating a collective-bargaining agreement covering certain of its employees on behalf of whom Respondent is the bargaining representative. Respondent denies that it was obligated to meet and bargain with Frehner inasmuch as Frehner was, and is, lawfully bound to a collective-bargaining agreement with it through and including July 15, 2010, covering the same bargaining unit employees. In this regard, Respondent argues that Frehner belatedly withdrew its authorization for a multiemployer bargaining association to bargain for said agreement on its behalf and that, in any event, by its actions, Frehner has adopted said agreement. Contrary to Respondent, while not denying the existence of the latter agreement, the General Counsel argues that Frehner is not a party to said agreement as it did, in fact, withdraw its authority for a multiemployer association to bargain on its behalf prior to the commencement of actual negotiations for the agreement and that Frehner has never adopted the above contract.
iv. the
alleged unfair labor practices
A. The Facts
The record establishes that Frehner is a State of Nevada
corporation with offices in North Las Vegas, Elko, and Sparks, Nevada and Park
City, Utah; that it acts as a general contractor in the building and
construction industry primarily engaged in performing “heavy” highway and bridge
construction work including all grading, paving, foundation, and bridge work;
that, in performing the above-described work, Frehner employs its own work
force but subcontracts out so-called specialty tasks including fencing, traffic
control, sign installation, and electrical work; and that, for its construction
projects in northern
In May 1995, just prior to the commencement of AGC’s negotiations for an agreement, which ultimately became effective from 1995 through July 15, 2000, with Respondent, Garth Frehner, on behalf of Frehner, entered into a proxy agreement with AGC, which, by its terms, appointed the latter to act as Frehner’s “lawful proxy, to represent me and negotiate a labor agreement on my behalf, and if such agreement is satisfactory to my proxy to sign such labor agreement. . . .” At or prior to the expiration of this agreement, AGC and Respondent engaged in bargaining for their agreement, which became effective from 2000 through 2005. On behalf of Frehner, Michael Pack was a member of the AGC’s bargaining committee and participated in the contract negotiations, and there is no dispute that, pursuant to the above-described proxy, Frehner became bound to, and adhered to, the terms and conditions of employment set forth in the latter agreement. Thus, according to General Counsel Stewart, Frehner complied with the agreement as “we felt we were bound to it, we were bound to this agreement . . .” and as “. . . it was my understanding we had a proxy with the AGC at the time. . . .”2
While Frehner had no difficulty with adhering to any of
the provisions of the existing agreement for the initial 2 years of the contract
period, the situation suddenly changed in 2003.
Stewart testified that, on Respondent’s projects in
While Pack engaged in ultimately fruitless individual discussions with Daly, seeking complete relief from the strict language of the aforementioned contractual subcontracting provision, in early 2004, AGC’s labor policy committee held meetings in order to discuss whether to approach Respondent, concerning early informal discussions5 for extending their existing collective-bargaining agreement and avoiding a possible strike or lockout situation, and decided to do so.6 Thereafter, in the spring of that year, John Madole contacted Respondent regarding engaging in such informal contract discussions. Richard Daly readily agreed to AGC’s request, and, on June 1, 2004, Daly and Madole signed a document, entitled memorandum of understanding, in which they stated their agreement that
[t]he parties will engage in informal discussions with respect to the possibility of amending, modifying, or renewing the Collective Bargaining Agreement prior to the formal expiration of the Collective Bargaining Agreement. If the parties, through their informal discussions, arrive at a mutual agreement and understanding as to the terms and conditions of any such proposed amendment, modification, or renewal, at that time, the parties will formally open the . . . Agreement to make such amendments, modifications, and/or renewals consistent with the mutual understanding that is derived from the informal discussions.
Further, AGC and Respondent agreed that the memorandum of understanding did not constitute formal notice, by either party, to terminate or open the existing agreement for negotiations and that, if the “informal discussions” failed, the formal termination and opening language of the existing collective-bargaining agreement would remain in effect. As to why the parties termed what they were about to enter into as “informal discussions,” Madole testified that “. . . unless both parties reached complete agreement on mutual desires . . . we would walk away and finish the agreement in 2005” and that they could avoid the legal issues, attendant to collective bargaining, including impasse, strikes, and lockouts.7 Based upon the memorandum of understanding, on June 22, July 8, 11, and 21, 2004, AGC and Respondent engaged in their “informal discussions” for a successor collective-bargaining agreement, and, according to Madole and Daly, the parties concluded their informal discussions on the latter date with all participants shaking hands on an apparent deal. According to Mark Sullivan and Madole, during their four meetings, the parties discussed all “the typical elements of a collective-bargaining agreement,” including wages and other terms and conditions of employment; sign-in sheets were distributed; there were proposals made on various issues by both parties; positions were modified after back and forth discussion; and agreements were reached.8 According to Daly, no participant believed anything less than bargaining had occurred.
Respondent was charged with mailing a copy of the June 1
memorandum of understanding to each AGC signatory contractor, and Michele King,
the office manager for Respondent, testified that she mailed copies of the
memorandum of understanding, each attached to a cover letter, dated June 14 and
signed by Daly, to Frehner’s
The record reveals that the apparent agreement, which was reached by Respondent and AGC, at the conclusion of their July 21 meeting was, pending ratification by Respondent’s employee-members,13 to extend their existing collective-bargaining agreement through 2010, with certain agreed-upon changes and to execute another memorandum of understanding, which would constitute the formal opening of their existing collective-bargaining agreement to enable them to incorporate the agreed-upon changes reached through their informal discussions. The only corroboration for AGC’s and Respondent’s assertion that complete agreement was reached is found in Madole’s notes for this meeting on which he wrote and circled “settled/9:45 a.m.” at the bottom. In fact, however, complete agreement was not attained on July 21. Thus, the parties did not agree upon an effective date for the contract extension, and, according to Daly, their only agreement on this point was “. . . to have it effective as soon as we could physically get all of the agreed-upon changes in writing.” Moreover, several drafts of the proposed memorandum of understanding, most of which are dated between July 27 and 30, circulated between the parties, and examination of the drafts, General Counsel’s Exhibits 25 through 28, patently reveals the absence of agreement on the contract extension effective date until the latter date. In this regard, Exhibit 25 bears two effective dates—October 1, 2004 for fringe benefits and August 1 for all other provisions; Exhibits 26 and 28 state as the effective date October 1, 2004; and the first page of Exhibit 27 contains a crossed-out sentence establishing July 30, 2004 as the effective date and the second page of the document has October 1 crossed out and July 30 interlined above it.
Michael Pack testified that he did not become aware that the informal discussions between AGC and Respondent had resulted in an agreement until July 26 or 27. According to Frehner’s president, on one of the above dates, he received a telephone call from Madole, who told Pack that he was aware Frehner was unhappy with the subcontracting provision of the existing collective-bargaining agreement, “and that’s the reason that he knew to give me a call.” Madole said that AGC’s discussions with the Laborers had been “informal,” but “have gone on in an informal tone to more of a formal tone . . . and it looks like we’ll enter into some type of formal negotiations with the Laborers. . . .” Madole continued, telling Pack that the existing subcontracting clause language would not be changed, and the latter replied “. . . unless we’ve got it in writing with regards to how to move forward with non-signatory subcontractors, then we could not sign that agreement.” To this, Madole responded that, if Frehner did not want to be party to the new collective-bargaining agreement, Pack had to withdraw its existing proxy.14 During cross-examination, asked if Madole told him that the parties had reached a tentative understanding with regard to a new agreement, Pack replied, “. . . not to a new contract. It was an understanding of going ahead with a formal discussion towards a new contract.” He then added, “I believed that the parties were very close to reaching agreement under a formal basis.” On this latter point, Pack was impeached by his pretrial affidavit wherein he stated that, during their telephone conversation, Madole said “. . . that the AGC had reached a tentative understanding with the union for a new collective-bargaining agreement.” With regard to their telephone conversation, which he recalled occurred on July 26, Madole testified that Pack placed the telephone call to him and “. . . expressed to me that he had just learned that we had reached some sort of an agreement on an extension of the [existing contract] and that he did not wish to be bound. . . . I told him I wasn’t exactly sure what his position was but that he asked me what he might do and I said, withdraw your proxy and perhaps that will get you out of being extended on the agreement.”15 Pursuant to Madole’s advice, on July 27, on behalf of Frehner, Pack sent the following letter to AGC’s office:
Re: Withdraw of
Proxy Laborers’ International
Gentlemen:
You are hereby notified that Frehner Construction Company, Inc. herewith revokes any or all proxies heretofore given you with respect to negotiations on a new bargaining agreement with the Laborers’ International Union of North America, Local 169.
You are not authorized nor empowered to act as proxy
holder or agent on our behalf in any negotiation, nor to execute any bargaining
agreement on our behalf, with any of the foregoing named
The withdrawing of our proxy is for future agreements only, not the agreement to which we are currently bound to with the Laborers’ International Union of North America Local 169, which is currently in place until July 15, 2005.
Also, on the same day, Pack telephoned Daly at Respondent’s office and informed him of the contents of the above letter to AGC. Pack testified that he and Daly discussed the fact that the only issue between Respondent and Frehner was the subcontracting clause, and “he had his position; we had our position . . . . I said I’m writing a letter to withdraw my proxy from the AGC, and I’m going to look forward to future negotiations for a new contract when this contract expires. . . . [H]e expressed his opinion once again . . . that if he can get the signatory general contractors to force all the subcontractors to become signatory, then that would solve the problem.”16
Notwithstanding Daly’s testimony that such was unnecessary, Respondent’s employee-members ratified the extension of the collective-bargaining agreement on July 29, and, the next day, Respondent sent a letter to all signatory contractors, including Frehner, in which Daly stated:
On June 14, 2004 you were sent a notice that [Respondent and AGC] were going to engage in informal discussions with respect to the possibility of amending, modifying or renewing the collective-bargaining agreement prior to the formal expiration date. . . . All contractors were invited to attend or to contact the AGC concerning such discussions.
On July 20, 2004 the Union and the AGC as a result of the informal discussions arrived at a mutual agreement and understanding pending ratification by the members of Laborers’ 169 as to the terms and conditions of the proposed amendments, modifications and extensions and/or renewals of the [contract], accordingly the Union and the AGC agreed to formally open the [existing contract] to make the [agreed-upon changes]. . . .
On July 30, 2004 [Respondent and AGC] formally opened the Laborers’ Master Agreement and agreed . . . to amend, modify, extend and/or renew the [existing collective-bargaining agreement].
As stated in the above letter, that same day, Daly and Madole entered into a memorandum of understanding, dated July 30, 2004. Said document states, in part:
WHEREAS, as a result of the informal discussions, the Union and the AGC have arrived at a mutual agreement and understanding as to the terms and conditions of the amendments, modifications, extension, and/or renewal of the existing laborers’ Master Agreement;
Therefore, the
The
The Successor Master Labor Agreement shall be effective July 30, 2004. The agreed to amendments, modifications, extension and/or renewal derived from the informal discussions shall be incorporated by reference . . . and shall remain in full force and effect to and including July 15, 2010. . . .
There is no dispute that, pursuant to Pack’s statement in
his July 27 letter, Frehner continued to adhere to the terms and conditions of
employment set forth in the 2000 through 2005 collective-bargaining agreement
between Respondent and AGC. Then, in
approximately February or March 2005, Daly and Respondent’s counsel met with
Pack and Sean Stewart in Frehner’s
Six days prior to the Board’s certification, Stewart, on behalf of Frehner, sent a letter to Respondent, accepting the result of the Board’s election and extending recognition to Respondent as the 9(a) representative of its laborer employees within Respondent’s territorial jurisdiction.17 Also, Stewart wrote that “Frehner requests that negotiations commence between Frehner and Laborers for a new collective-bargaining agreement . . . under which both sides may continue to operate” and that Frehner would continue to abide by the terms and conditions of the 2000 through 2005 collective-bargaining agreement until agreement on a successor was reached by the parties or until bargaining resulted in an impasse. Ten days later, on July 22, Daly wrote a letter to Stewart and, essentially, refused to engage in bargaining with Frehner, stating that Respondent believed Frehner was, and remained, bound to the recently completed 2005 through 2010 contract extension agreement between AGC and Respondent, that, pursuant to Bonanno Linen Service v. NLRB, 454 U.S. 404 (1982), and Retail Associates, 120 NLRB 388 (1958), Frehner’s withdrawal of its proxy was untimely, and that Respondent would be prepared to bargain with Frehner “only at the appropriate time.” On July 29, Stewart replied to Daly by letter, stating Frehner’s disagreement with the legal conclusions set forth in his July 22 letter and reiterating Frehner’s request to commence bargaining on a successor collective-bargaining agreement, and, on August 4, Daly, by letter, replied to Stewart, stating that Respondent was “. . . firm in our position that your request is not timely. . . .”
Sean Stewart testified that, notwithstanding AGC’s and Respondent’s extension of their 2000 through 2005 collective-bargaining agreement until 2010, Frehner “. . . [has] tried to follow the [2000 through 2005] agreement in all that we do. . . . To my knowledge we were careful to implement the old . . . contract and not use any of the new information,” including the new wage rates. The record establishes that section 26 of the collective-bargaining agreement between Respondent and AGC requires a signatory contractor to pay, on behalf of each laborer employee, a “working assessment” payment,18 commonly referred to as the dues checkoff, to Respondent19 for the operation of its hiring hall and the building trades assessment fund and that, from October 2004 through October 2005, Frehner paid the dues checkoff assessment at the rate of 44 cents per hour for each laborer employee. According to Richard Daly, the foregoing contractual dues checkoff payment amount went into effect on October 1, 2004; it represented a 1-cent-per-hour increase over the previous checkoff amount; and the increase was based upon a wage increase, which went into effect on October 1 for laborers as a result of the agreement reached by the AGC and Respondent on July 30, 2004.20 Daly added that, between October 2004 and October 2005, no one from Frehner ever contacted him, contending that the increase in the checkoff was a mistake, and that Frehner would no longer pay the increased amount.21 Contrary to Daly, Sean Stewart testified that an individual in Frehner’s payroll department informed him that, in October 2004, pursuant to the contractual formula, the dues checkoff amount would have increased from 43 cents to 44 cents notwithstanding the October 1 wage increase established by the 2010 contract extension agreement.22 Moreover, Frehner refused to pay an additional checkoff increase in October 2005 on grounds that a new contract between Frehner and Respondent had not been executed.23
B. Legal Analysis
The complaint alleges that, commencing on July 22, 2005, Respondent engaged in, and continues to engage in, acts and conduct violative of Section 8(b)(3) of the Act by failing and refusing to meet and bargain with Frehner concerning a collective-bargaining agreement between the parties. In this regard, Section 8(d) of the Act defines bargaining collectively as “. . . the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment or the negotiation of an agreement. . . .” In these regards, it is, of course, axiomatic that an employer violates Section 8(a)(1) and (5) of the Act by failing and refusing to meet with reasonable promptness and frequency with the bargaining representative of its employees in order to engage in collective bargaining. People Care, Inc., 327 NLRB 814, 825 (1999). Moreover, since Section 8(b)(3) of the Act parallels Section 8(a)(5), it is clear that the obligations, imposed upon employers, to meet at reasonable times and places in order to bargain are likewise applicable to labor organizations. AAA Motor Lines, Inc., 215 NLRB 789, 791 (1974). Herein,24 Respondent was certified as the bargaining representative for Frehner’s full-time and regular part-time laborer employees within the former’s geographic jurisdictional area, a single employer unit; on July 12 and 29, 2005, Frehner requested that Respondent commence negotiations with it for a collective-bargaining agreement; and it is not in dispute, that, by letters dated July 22 and August 4, 2005, Respondent stated its refusal to meet and commence bargaining with Frehner until the appropriate time. In these circumstances, it is apparent that the General Counsel has established a prima facie violation of Section 8(b)(3) of the Act and that the real issues in the instant matter are the validity of Respondent’s defenses—that Frehner is bound to the 2010 extension agreement between Respondent and AGC and, therefore, Respondent is under no obligation to bargain on an individual basis with Frehner until the expiration of said agreement and that, by its conduct, Frehner adopted the said extension agreement.
With regard to Respondent’s initial defense, it asserts
that Frehner’s July 27, 2004 withdrawal of its proxy to AGC did not constitute
a timely withdrawal from multiemployer bargaining so as to enable it to refrain
from abiding by the 2010 contract extension agreement between AGC and
Respondent, and, in support, Richard Daly, in his July 22 letter to Frehner,
and counsel for Respondent, in his posthearing brief, relied upon the Supreme
Court’s decision in Charles Bonanno Linen
Service v. NLRB, supra, and the Board’s decision in Retail Associates, supra. In
Retail Associates, the Board held
that an employer’s “. . . decision to withdraw must contemplate a sincere
abandonment, with relative permanency, of the multiemployer unit and the
embracement of a different course of bargaining on an individual employer
basis,” and that it would not permit withdrawal “. . . except upon adequate
written notice given prior to the date set by the contract for modification or
to the agreed-upon date to begin the multiemployer negotiations. Where actual bargaining negotiations based on
the existing multiemployer unit have begun, we would not permit, except on
mutual consent, an abandonment of the unit upon which each side has committed
itself to the other, absent unusual circumstances.”
While Respondent correctly stated the rules for valid withdrawal
from multiemployer bargaining in the context of a Section 9 bargaining
relationship, the Retail Associate
rules no longer govern withdrawal from multiemployer bargaining in the context
of an 8(f) bargaining relationship.
Thus, there is no dispute that, at least with regard to the 2000 through
2005 collective-bargaining agreement and, undoubtedly for the prior agreements
between the parties, the employer members of AGC, including Frehner, each
recognized Respondent as the bargaining representative for its laborer
employees pursuant to Section 8(f) of the Act, which, of course, permits
employers in the building and construction industry to recognize and bargain
with labor organizations, acting as the bargaining representative for certain
of their employees, notwithstanding that the labor organization has not
established majority status. In John Deklewa & Sons, 282 NLRB 1375
(1987), the Board required that “when parties enter into an 8(f) agreement,
they . . . comply with that agreement unless the employees vote, in a
Board-conducted election to reject (decertify) or change their bargaining
representative.” Likewise, in an 8(f)
context, an employer, which signs an agreement to be bound by multiemployer association
bargaining or to adhere to an association agreement, must abide by that
agreement for its term. Twin City Garage Door Co., 297 NLRB 119
(1989). However, with regard to the
binding effect upon an 8(f) employer of a successor to such a multiemployer
agreement, in James Luterbach Construction
Co., 315 NLRB 976 (1994), the Board noted that the Retail Associates rule was developed within the context of multiemployer
bargaining relationships, governed by Section 9 of the Act, in which, upon
expiration of an agreement, the signatory employers have a statutory obligation
to bargain for a successor contract and concluded that, in contrast, as an employer,
which has an 8(f) relationship with a labor organization, does not have an
obligation to bargain for a successor agreement; “if a multiemployer group
consists solely of such employers, neither the multiemployer group nor any of
its members would have an obligation to bargain for a successor contract.” James
Luterbach Construction Co., supra at 979.
Continuing, the Board noted that an employer, which has an 8(f)
bargaining relationship with a labor organization, in certain circumstances,
may obligate itself to a successor contract and, in order to determine under
what circumstances an 8(f) employer has agreed to be bound by the results of bargaining
in a multiemployer context, developed a two-part test—“First, we will examine
whether the employer was part of the multiemployer unit prior to the dispute. .
. . If this first inquiry is answered
affirmatively, then we will examine whether that employer has, by a distinct
affirmative action, committed to the union that it will be bound by the
upcoming or current multiemployer negotiations.” If an employer meets both parts of the test,
it “. . . will be deemed to have clearly and unmistakably waived both its right
to withdraw recognition on contract expiration and its right to bargain as an
individual.”
Contrary to Respondent, counsel for the General Counsel argues
that Frehner’s withdrawal of its proxy to AGC was timely and that reliance upon
James Luterbach Construction Co. is
not necessary. In this regard, the
General Counsel relies upon the Board’s decision in Plasterers Local 337 (Marina Concrete Co.), 312 NLRB 1103 (1993),
in which, in the context of an 8(f) relationship, the employer became bound to
an AGC collective-bargaining agreement with the Cement Masons Union and to
successor agreements. During the term of
the most recent of said agreements, the employer became a member of AGC. As herein, well prior to the expiration date
of the agreement, AGC and the Cement Masons entered into “talks,” which, in a
memorandum, the parties characterized as off-the-record exploratory, nonbinding
discussions and as not constituting collective bargaining, and, eventually, the
discussions culminated in a tentative agreement on a new collective-bargaining
agreement. Then, the parties agreed upon
a date by which any employer, which did not desire to be bound by the
agreement, was required to withdraw its bargaining authorization to AGC. Two days before the deadline date, the
employer wrote to the AGC and to the Cement Masons, announcing its desire to
not be party to the successor agreement between the parties and, thereafter,
continued to apply the terms and conditions of employment of the existing
contract. Subsequently, upon expiration
of the existing agreement, attempts to commence negotiations between the
employer and the Cement Masons failed, and the former wrote to the Cement Masons,
stating its intent to no longer recognize and bargain with that labor organization. The Board initially noted that its decision
in the matter would be in the context of the Retail Associates guidelines for withdrawal from multiemployer
bargaining (id. at 1104 fn. 5), and then concluded that the employer’s notice
to AGC and the Cement Masons constituted timely and unequivocal notice as the
prior informal discussions between AGC and the Cement Masons did not constitute
negotiations within the meaning of the Retail
Associates guidelines. In the latter
regard, the Board specifically noted that, in their above-described memorandum,
the parties stated their deliberate intent to remove their dealings from the
constraints of Retail Associates.
I agree with counsel for the General Counsel that Respondent
engaged in the alleged unfair labor practice herein; however, I reiterate my
views, expressed during the trial, that counsel’s reliance upon the Mariana Concrete, supra, rationale is
erroneous and that this matter must be resolved pursuant to the rationale,
expressed by the Board in James Luterbach
Construction Co., supra. Thus, in Marina Concrete, which involved an 8(f)
bargaining relationship and a putative withdrawal from multiemployer bargaining,
the Board resolved the matter in the context of the Retail Associates guidelines and, in that regard, the main focus of
its decision was whether the employer’s withdrawal of bargaining authority,
which occurred subsequent to the conclusion of talks, but not bargaining, between
the AGC and the Cement Masons, from the former was timely. However, in James Luterbach Construction Co., the Board expressly stated that,
because, in an 8(f) bargaining relationship, an employer is under no obligation
to bargain for a successor collective-bargaining agreement, in a multiemployer
context, as herein involved, the Retail
Associates guidelines do not apply.
Therefore, contrary to counsel for the General Counsel, whether or not
the “informal discussions” between Respondent and AGC constituted collective
bargaining and whether or not Frehner’s withdrawal of its proxy from AGC was
timely are not relevant issues. Rather,
herein, the only issues are (1) was Frehner a part of a multiemployer unit as
of July 30, 2004, the effective date of the contract extension agreement
between Respondent and AGC, and (2) whether Frehner, by “distinct affirmative
action,” recommitted to Respondent its intent to be bound to said extension
agreement. Moreover, contrary to counsel
for the General Counsel, the Board’s decision in Patterson-Stevens, Inc., 316 NLRB 1278 (1995), supports my view of
the Board law. Thus, in that matter, in
the context of a Section 8(f) bargaining relationship, the employer withdrew
bargaining authority from a multiemployer bargaining association, of which it
was a member, subsequent to a meeting of association members, during which they
discussed the feasibility of early contract negotiations, and a meeting between
representatives of the association and the union, which the administrative law
judge described as “exploratory talks before the formal opening of
negotiations.”
We affirm the judge’s conclusion that the Respondent
timely and unequivocally withdrew from multiemployer bargaining before the
Accordingly, I reiterate my view that the validity of
Respondent’s defense, Frehner was, and remains, bound to the July 30 contract
extension agreement between Respondent and AGC, must be analyzed utilizing the
principles of James Luterbach
Construction Co. In this regard, I
initially note that, as, at least prior to July 2005, an 8(f) bargaining
relationship existed between Respondent and Frehner, the latter was under no
obligation to abide by a successor collective-bargaining agreement between AGC
and Respondent and that the Board’s focus is not on whether Frehner
unequivocally and timely withdrew from multiemployer bargaining so as not to be
bound to said agreement but, rather, upon whether, by July 30, 2004, the effective
date of the contract extension agreement and the date upon which Respondent and
AGC set forth their intent to formally open their existing agreement for the
purpose of executing their extension agreement, Frehner demonstrated to Respondent
its intent to be bound to the said agreement.
As to this, Respondent argues that utilizing the two-part test in James Luterbach Construction Co.
establishes that Frehner did, in fact, manifest such intent. I disagree.
Concerning whether the Charging Party remained part of the multiemployer
bargaining unit as of July 30, I agree with counsel for Frehner that this must
be answered in the negative. Thus,
while, arguably, Frehner remained part of the multiemployer bargaining unit,
represented by AGC, through July 26, 2004,26
I believe, by Pack’s letter dated July 27, 2004, Frehner removed itself from
the said multiemployer bargaining unit and effectively demonstrated its intent
not to recommit to multiemployer bargaining.
Counsel for Respondent points to the letter’s language (“The withdrawing
of our proxy is for future agreements only. . . .”) as proof that Frehner
intended to be part of the multiemployer bargaining unit, bound to the 2010
contract extension; however, the remainder of Pack’s letter makes clear that he
was referring to agreements beyond the existing 2000 through 2005 contract.27
While this finding nominally ends the inquiry, assuming arguendo that
counsel is correct and Frehner recommitted itself to the multiemployer
bargaining unit for the 2010 contract extension, as of July 30, I do not
believe Frehner ever engaged in any “distinct affirmative action” so as to
recommit to Respondent its intent to be bound by the contract extension
agreement. On this point, counsel for
Respondent points to the attendance of Fred Courrier, a northern Nevada area
manager for Respondent, at an AGC labor policy committee meeting, during which
the possibility of engaging in informal discussions with Respondent was the
topic of conversation, and to Pack’s order to Courrier that he attend no
further such meetings or participate in any informal discussions with Respondent. Contrary to counsel, whether or not Courrier
attended an AGC labor policy meeting is relevant only if a representative of Respondent
also attended or the attendance list and meeting minutes were shown to Respondent;
for the wording of the second part of the Board’s test presupposes that the
labor organization possesses knowledge of the employer’s actions. Herein, there is no evidence that Respondent
was aware that Courrier attended an AGC labor policy meeting or, indeed, that
he voted for or against AGC engaging in informal discussions. Therefore, Courrier’s attendance at an
internal AGC meeting hardly constitutes a distinct affirmative act of
recommitment. Finally, whatever
knowledge Michael Pack may have possessed regarding the informal discussions
between AGC and Respondent and notwithstanding how calculating his inaction
might have been, the fact remains that Frehner did not participate in any of
the informal discussions between AGC and Respondent, and the Board has held
that “. . . mere inaction . . . is not sufficient to show that the 8(f) employer
has reaffirmed its intention to be bound by the results of multiemployer
bargaining.”
Turning to Respondent’s second defense, that, by its
actions, Frehner adopted the 2010 contract extension between Respondent and
AGC, I initially note that there is no dispute that, from October 2004 through
October 2005, Frehner did, in fact, make the increased dues checkoff payments
(an increase from 43 cents to 44 cents per laborer employee per man hour of
work) for its laborer employees to Respondent’s trust funds. However, contrary to counsel for Respondent,
I do not believe that this evidences adoption of the extension agreement by
Frehner. At the outset, I agree with
counsel for Frehner that what Frehner did may have been required by the existing
2000 through 2005 bargaining agreement.
Thus, said agreement required an increase of 50-cents-per-hour in wages
and fringe benefits payments on October 1, 2004, and, with a portion of said
payment being allocated to wages, pursuant to the contractual formula for
calculating the checkoff amount, such surely would have correspondingly increased
the dues deduction for each employee to, at least, 44-cents-per-hour. Moreover, assuming Respondent is correct and
Frehner deliberately based its increased dues checkoff on an amount equivalent
to the contract extension agreement wage increase, while it is true that
employers may be held to have adopted collective-bargaining agreements (E.S.P. Concrete Pumping, Inc., 327 NLRB
711, 713 (1999), for the first 9 months of increased dues deductions, Frehner
and Respondent had an 8(f) bargaining relationship, and the Board has held
that, upon expiration of a collective-bargaining agreement, voluntary
compliance with terms equivalent to those of a successor agreement “. . . gives
rise to no obligations whatsoever.”).
Conclusions of Law
1. Frehner is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the Act.
3. At all times material herein, since July 18, 2005, by virtue of Section 9(a) of the Act, Respondent has been the exclusive representative for purposes of collective bargaining of all full-time and regular part-time laborers employed by Frehner in the State of Nevada, except Clark County, Lincoln County, the town of Tonopah, and the portions of Nye County and Esmeralda County lying south of Highway Six (U.S. 6); excluding all managers, salespersons, estimators, office clerical employees, all other employees, and supervisors as defined in the Act.
4. Since July 22, 2005, Respondent has refused to meet and bargain in good faith with Frehner, with regard to a collective-bargaining agreement covering the employees in the above-described bargaining unit, in violation of Section 8(b)(3) of the Act.
5. The above-described unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act.
The Remedy
I have found that Respondent engaged in, and continues to engage in, a serious unfair labor practice within the meaning of Section 8(b)(3) of the Act. Accordingly, I shall recommend to the Board that it be ordered to cease and desist from engaging in said acts and conduct and to engage in certain affirmative acts designed to effectuate the purposes and policies of the Act, including the posting of a notice detailing its obligations.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended28
ORDER
The Respondent, Laborers’ International Union of North America, Local Union No. 169, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain in good faith for a collective-bargaining agreement with Frehner, covering the full-time and regular part-time laborers employed by the latter;
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Meet and bargain in good faith with Frehner for a collective-bargaining agreement, covering the latter’s full-time or regular part-time laborers or until a valid impasse in bargaining is reached, and, if agreement is reached, embody the terms of said agreement in a written collective-bargaining agreement.
(b) Within 14 days after service by the Region, post at its
office and hiring hall facility located in
(c) Sign and return to the Regional Director sufficient copies of the notice for posting by Frehner, if willing, at all places where notices to employees are customarily posted.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Members
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
We will not fail and refuse to meet and bargain in good faith with Frehner Construction Co. for a new collective-bargaining agreement covering its full-time and regular part-time laborer employees.
We will meet and bargain in good faith with Frehner Construction Co. for a collective-bargaining agreement covering its full-time and regular part-time laborer employees or until a valid impasse in bargaining is reached and, if an agreement is reached, embody said agreement in a written collective-bargaining agreement.
Laborers’ International Union of
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 evidence 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 examined the record and find no basis for reversing the findings.
The General Counsel excepts, among other things, to the judge’s failure to specifically find that Fred Courrier is no longer employed as the Employer’s project manager. The record does, in fact, show that Courrier was no longer employed at the time of the hearing. This finding, however, does not affect our decision herein.
We adopt the judge’s finding that the Respondent violated Sec. 8(b)(3) of the Act by refusing to meet and bargain with the Employer. In particular, we agree with the judge that, under James Luterbach Construction Co., 315 NLRB 976 (1994), in the context of an 8(f) relationship, the Employer timely withdrew its proxy and effectively demonstrated its intent not to recommit to the upcoming multiemployer bargaining. While there were three separate opinions in Luterbach, a common rationale of the Board majority (Members Stephens and Cohen and Chairman Gould) was that there must be affirmative conduct that recommits an employer to multiemployer bargaining. Here that did not occur. By insisting the Employer was bound to the successor agreement and refusing to bargain with the Employer for a new agreement upon its certification as the 9(a) representative of the Employer’s employees, the Respondent violated Sec. 8(b)(3).
In finding the violation, the judge rejected the General Counsel’s argument that a violation should be found under the rationale set forth in Plasterers Local 337 (Marina Concrete), 312 NLRB 1103 (1993). In that case, which issued before James Luterbach, the Board held that an employer’s withdrawal of authorization prior to the effective date of the successor contract, but after the commencement of informal discussions, was timely. Because the application of Marina Concrete would not require a different result here, we find it unnecessary to pass on the judge’s discussion of that case.
2 We shall modify the judge’s recommended Order to include the Board’s standard remedial language for the violation found, and we shall substitute a new notice to conform to the language set forth in the Order.
3 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Members Liebman and Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
4 If this Order is
enforced by a judgment of a
1 AGC’s agreement with Respondent covered the work of Frehner’s laborers on its projects within the State of Nevada except those located in Clark and Lincoln counties, the town of Tonopah, and that portion of Nye and Esmeralda counties lying south of Highway 6.
2 Michael Pack also conceded the validity of the proxy as of July 26, 2004.
3 According to Sean
Stewart, United Rentals was “. . . having issues with the Laborers’
4 R. Exh. 1 is a memorandum of understanding between AGC and Respondent, dated July 31, 2003, with regard to solving the problem caused by an insufficient number of qualified signatory bidders to perform pavement marking and highway striping work. The memorandum of understanding established the circumstances and limits whereby the subcontracting provision of the 2000 through 2005 agreement would be waived. Apparently, Respondent agreed to waive compliance with the subcontracting provision for all work of subcontractors prior to July 31, 2003, but specifically excluded four Frehner projects. With regard to Frehner’s four projects, it received relief from the subcontracting provision for the pavement marking and highway striping work of subcontractors performed on or after July 1, 2004. Excluded was traffic control, permanent signage, and guardrail work.
5 According to John Madole, notwithstanding that the existing contract’s termination language was explicit the agreement would remain in effect until July 15, 2005 “. . . unless either party to the agreement shall give written notice to the other of a desire to change, modify, or terminate the Agreement not more than 90 days nor less than 60 days prior to July 15, 2005 . . .,” in the past, the parties had utilized a procedure for obviating such a formal reopening of their contract by engaging in what were termed “informal discussions.”
6 According to Mark Sullivan, AGC’s assistant executive director during 2004, Frehner was aware of these meetings as “. . . we call everybody on our list. Anybody that we have a proxy for . . . as a courtesy . . . . I know what I would typically do is I would just contact the local office here, and I believe the person . . . would either be Bob Perretto or Fred Courrier. . . .” Further, Sullivan thought that Courrier attended at least one of the labor policy committee meetings.
7 Likewise, Mark Sullivan believed the parties labeled their talks informal discussions as “. . . we wanted to make sure . . . it was for protection from both sides. . . . We wanted to just have the opportunity to sit down and have nobody beholden to anything. . . .” Sullivan did not believe legal protection was primary in the parties’ mindset for the discussions. “I think it was more what was going on the marketplace, we were trying to head off . . . a problem that we may have down the road for both the labor side and [the] management side. . . .” On the other hand, according to Richard Daly, “I think both sides were worried about either a strike or a lockout. Neither side wanted to wait until 2005.”
8 Madole testified that, during the informal discussions, Respondent never offered proof of majority support among the employees of any signatory contractor, including Frehner.
9 R. Exh. 2 is the address label sheet, utilized by Respondent for mailing the memorandum of understanding and attached cover letter to signatory contractors, including Frehner. The document shows the two office addresses for the latter.
10 According
to Stewart, when mail not addressed to any particular individual arrives at
Frehner’s
11 Pack asserted that he had never seen the June 1, 2004 memorandum of understanding or Respondent’s cover letter until the first day of the trial.
12 According to Pack, other than the subcontracting provision, he was satisfied with the terms of the existing collective-bargaining agreement, and “. . . there was no use in us going to informal discussions and talking about other points.”
13 According to Madole, Daly assured him that their agreement would be ratified, and Daly testified that he is authorized to consummate agreements without ratification.
14 According to Pack, Madole never said he thought Frehner was bound to the 2010 contract extension.
15 According to Madole, he offered no assurance to Pack that withdrawing Frehner’s proxy would enable it not to be bound to the 2010 extension of the AGC contract with Respondent. Madole averred that he has been cautioned by AGC’s attorney not to offer legal advice. Further, asked by me if, prior to their telephone conversation, he had any indication whether Frehner wanted, or did not want, to be bound to the Laborers’ contract extension, Madole replied, “I was unaware of anything either way.”
16 Corroborating Pack’s testimony that he orally informed Daly of Frehner’s withdrawal of the proxy is Daly’s request to Madole that the latter send to Respondent a copy of Pack’s July 27 letter. Madole did so on August 13, 2004.
17 According to Stewart, he sent the latter as “we had recently received the results of the election, it was my understanding that we were now a single employer unit with a 9(a) relationship, and we were coming close to [the deadline for terminating the existing 2000 through 2005 collective-bargaining agreement], and I wanted to let the Union know that . . . we wanted to bargain for a new agreement and . . . we would continue under the old agreement.”
18 Frehner deducted an amount, calculated at 2.25 percent of the hourly wage rate, from each laborer’s gross wages.
19 The total dues chec