Construction Labor Unlimited

National Labor Relations Board - Board Decisions

Sep 23, 1993

312 N.L.R.B. 364 (N.L.R.B. 1993)

364
312 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge inadvertently referred to a charge previously filed by
the Union as Case 35–CA–4966, instead of its correct designation,
Case 34–CA–4966.
Chairman Stephens agrees with the result here because he finds
this case distinguishable from Wilson & Sons Heating, 302 NLRB
802 (1991), enf. denied 971 F.2d 758 (D.C. Cir. 1992), and Fortney
& Weygandt, Inc., 298 NLRB 863 (1990), in which he dissented.
The acceptance agreement here, unlike the letters of assent in those
cases, contains its own automatic renewal provision which specifi-
cally obligates the Respondent to successor agreements between the
Union and the Labor Relations Division of the Associated General
Contractors of Connecticut, Incorporated (AGC), unless timely writ-
ten notice is given. It is clear, as the judge found, that timely written
notice was never given; thus, the Respondent became bound to the
terms of the 1991–1993 collective-bargaining agreement between the
AGC and the Union.
2 Contrary to the Respondent’s assertion, Member Devaney’s and
Member Raudabaugh’s finding that the Respondent is bound, pursu-
ant to the automatic renewal clause of the 1989–1991 collective-bar-
gaining agreement, to a successor agreement is not inconsistent with
the principles announced in John Deklewa & Sons, 282 NLRB 1375
(1987), enfd. 843 F.2d 770 (3d Cir.), cert. denied 488 U.S. 889
(1988). The renewal clause provides that a party seeking to terminate
the agreement must ‘‘give[] notice in writing to the other party of
its intention . . . and request[] that negotiations be entered into for
a successor agreement.’’ Even assuming arguendo that the renewal
clause imposes on the parties a continuing bargaining obligation
after the agreement’s termination date, as the Respondent contends,
nothing in Deklewa precludes the parties from voluntarily entering
into such an agreement. Moreover, Members Devaney and
Raudabaugh note that the Union never sought to enforce any such
bargaining obligation; instead, the Respondent became bound to the
successor agreement based on the notice sent by the Union, prior to
the contract’s expiration date, pursuant to the renewal clause, and on
the Respondent’s failure to send any timely notice of termination of
its own.
1 The relevant docket entries are as follows: The Union filed its
unfair labor practice charge on February 10, 1992, and amended it
on March 26, the same date that the complaint issued. The hearing
was held in Hartford, Connecticut, on August 19, 1992.
Construction Labor Unlimited, Inc./ Frank Mercede
Jr. Construction Group, Inc. and Connecticut
Laborers’ District Council for its Local Union
665, Laborers’ International Union of North
America, AFL–CIO. Case 34–CA–5572
September 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 27, 1993, Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Construction Labor Unlim-
ited, Inc./Frank Mercede Jr. Construction Group, Inc.,
Stamford, Connecticut, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Thomas E. Quigley, Esq., for the General Counsel.
Michael N. LaVelle (Pullman & Comley), of Bridgeport,
Connecticut, for the Respondent.
Michael S. Bearse, Esq., of Providence, Rhode Island, for the
Charging Party.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. Re-
spondents Construction Labor Unlimited, Inc. (Construction),
and Frank Mercede Jr. Construction Group, Inc. (Mercede),
admit that they have been affiliated business enterprises with
common officers, ownership, directors, management and su-
pervision; have formulated and administered a common labor
policy; have shared common premises with each other; have
provided services to each other; have provided services for
the same customers; have interchanged personnel with each
other; have shared common facilities and telephones; and
have held themselves out to the public as a single integrated
business enterprise. However, they do not agree that they are
both bound by a collective-bargaining agreement between the
Connecticut Laborers District Council of the Laborers Inter-
national Union of North America, AFL–CIO (Council), and
the Labor Relations Division of the Associated General Con-
tractors of Connecticut, Incorporated (AGC). Construction
admits that it is, but Mercede contends that it is a nonunion
double-breasted operation and not required to bargain collec-
tively with the Council for its Local Union 665, Laborers’
International Union of North America, AFL–CIO (Local). It
is that failure to bargain, the failure to continue in effect the
collective-bargaining agreement, and the refusal to supply
certain information essential to bargaining that caused the
issuance of the complaint herein under Section 8(a)(5) and
(1) of the National Labor Relations Act.1
Jurisdiction is admitted. Respondents, both Connecticut
corporations with offices and places of business in Stamford,
Connecticut, and at various jobsites in and around Connecti-
cut, have been engaged as contractors in the building and
construction industry. During the year ending February 29,
1992, Respondents, collectively and individually, provided
services valued in excess of $50,000 for the city of Bridge-
port, Connecticut, which purchased and received at its facili-
ties goods valued in excess of $50,000 directly from points
outside Connecticut and is directly engaged in interstate
commerce. I conclude, as Respondents admit, that they, col-
lectively and individually, are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. I also conclude, as Respondents admit, that the Local
and the Council (both collectively referred as the Union) are
labor organizations within the meaning of Section 2(5) of the
365CONSTRUCTION LABOR UNLIMITED
2 When he testified, he was an employee of only Construction.
3 The letters are very much at issue and all will be quoted in this
decision. For ease of reference, I have numbered them ‘‘1,’’ ‘‘2,’’
‘‘3,’’ and ‘‘4.’’
Act. Council is an association composed of various constitu-
ent labor organizations, including Local 665, and exists for
the purpose of representing such constituent labor organiza-
tions in dealing with employers, such as Respondents, con-
cerning labor disputes and in bargaining collectively with
employers regarding wages, rates of pay, hours, and other
terms and conditions of employment.
The AGC has been an organization composed of employ-
ers engaged in the construction industry, and which exists for
the purpose, among other things, of representing its em-
ployer-members in negotiating and administering collective-
bargaining agreements with various labor organizations, in-
cluding the Council. About August 1, 1986, Construction
granted recognition to the Union as the exclusive collective-
bargaining representative of the following unit, which is ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All laborers employed by Construction, excluding all
other employees, office clerical employees and guards,
professional employees and supervisors as defined in
the Act.
That recognition resulted from Construction’s execution of
acceptance agreements on August 1, 1986, and in or about
late June 1987, whereby it agreed to accept and approve the
1984–1987 and 1987–1989 collective-bargaining agreements
between the Council and the AGC and to be bound by all
future agreements between the Council and the AGC, unless
timely notice was given, without regard to whether the ma-
jority status of the Union had ever been established under the
provisions of Section 9 of the Act. Such recognition has been
embodied in successive collective-bargaining agreements, the
most recent of which, dated April 1, 1991, is effective by its
terms for the period from April 1, 1991, through March 31,
1993. For the period from August 1, 1986, to March 31,
1993, and year to year thereafter, unless timely notice is
given, based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of the
above-described unit.
Respondents made an attempt to live within the teaching
of South Prairie Constr. v. Operating Engineers Local 627,
425 U.S. 800 (1976), which instructs that in the construction
industry, an employer may operate two separate entities, one
as a union firm, and one nonunion, providing that there is
a complete separation of the employing entities and that there
can be no finding that the employees of both constitute a sin-
gle appropriate bargaining unit. Unfortunately, Construction
and Mercede did not remain separate. During the summer of
1990, Construction was operating as a subcontractor on a
school building project in Bridgeport, Connecticut, the gen-
eral contractor of which was Mercede. Anthony Gaglio, a su-
pervisor of both Respondents, but then as general super-
intendent of Mercede,2 hired laborers from the Union’s hir-
ing hall for employment by Construction. To appease the
Mayor of Bridgeport, Gaglio also hired Angel Llera, not
from the Union’s hiring hall, to work with the union labor-
ers, despite the fact that Llera did not belong to the Union.
The Union filed a grievance on August 24, 1990, complain-
ing that Construction had violated the collective-bargaining
agreement’s exclusive hiring hall provision. (Later, the Union
learned that Llera had been transferred to Mercede’s payroll.)
That same month, Gaglio, again in his position as general
superintendent of Mercede, decided to fire the union shop
steward on Construction’s payroll and replace him with an
employee from another jobsite. His letter so notifying Ron
Nobili, the Union’s business agent, was on Mercede’s letter-
head. Nobili replied to Gaglio on August 13, noting that the
Union had no agreement with Mercede. That was followed
by Nobili’s letter to Construction on August 24, asking it to
answer a lengthy questionnaire (attached as ‘‘Appendix A’’)
about the relationship of Construction and Mercede which
Nobili represented was ‘‘relevant to the union’s performance
of its function as the exclusive collective bargaining rep-
resentative of the employees in the unit.’’ He threatened that
the failure to answer the questionnaire would lead to the fil-
ing of charges under Section 8(a)(5) and (1) of the Act.
When Construction replied to only 2 of 79 questions, the
Union’s attorney wrote on September 21 that the information
was necessary to determine whether both Employers were
sufficiently related as to be bound by Construction’s agree-
ments. Because Construction did not answer any of the re-
maining questions, the Union filed a charge in Case 35–CA–
4966, and a complaint issued on January 24, 1991, alleging
that Respondents constituted a single employer, that only one
unit was appropriate, and that both Respondents violated the
Act by failing to apply Construction’s agreement to Mer-
cede’s employees, by discharging the union steward, and by
refusing to answer the questionnaire.
The Board proceeding caused an angry response, but the
parties dispute which of four letters were sent,3 and by
whom, and whether any of them, if sent, was effective in ter-
minating the collective-bargaining agreement, under which
Construction was bound, which agreement expired on March
31, 1991, and was succeeded by a new 2-year agreement,
which expires by its terms on March 31, 1993. The letter that
Nobili recalled receiving was on the letterhead of Mercede,
was dated January 31, 1991, and was signed by Frank
Mercede III, Construction’s president (but also Mercede’s
treasurer and director). It stated:
Due to the unnecessary and continued unjustified
harassment by several, actually the business agent from
Bridgeport, I have made a business decision to with-
draw from the Laborers Collective Bargaining Agree-
ments in Connecticut.
This will serve as official notification.
This letter was read by Dominick Lopreato, the Council’s
business manager, at a union meeting in February. Nobili
specifically recalled that this was the letter that was read,
first, because he was the business agent from Bridgeport and
the letter was directed at him, and, second, because the letter
came from Mercede, which had no contract with the Union.
Even assuming that the above letter was an attempt to give
notice that Construction was terminating its agreement at its
expiration at the end of March, Construction nonetheless
continued to employ union laborers and make contributions
on their behalf to various fringe benefit plans, as required by
the collective-bargaining agreement, for April, May, and
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The forms that accompanied the payments were sent by Con-
struction (but bear the signature of a staff accountant of Mercede)
and acknowledge that: ‘‘This firm is a party to a Collective Bargain-
ing Agreement which provides for payments by Employer to the
Fund(s) specified in this report and provides that he is bound by the
terms and conditions of the Trust Agreement(s) governing the
Fund(s) and the rules adopted pursuant thereto.’’
June.4 In August, on the eve of the hearing in Case 35–CA–
4966, the parties settled. Respondents agreed to answer the
questionnaire, to pay backpay, and to make contributions to
the fringe benefit plans for Llera and other employees for the
period from April 1, 1989, through March 31, 1991.
A number of incidents occurred late that summer or early
fall. First, the Union learned that Mercede was offering indi-
vidual insurance benefits to its employees. Second, the last
contributions that Construction paid to the benefit plan, for
July, was paid on September 12; and there was a strange
conversation between Gaglio and Nobili, at least so Gaglio
testified, in which Gaglio told Nobili that all of Construc-
tion’s employees had been transferred to the payroll of
Mercede, and Nobili replied that the funds could no longer
accept contributions to the plans. That really is most un-
likely, not only because I distrust Gaglio, but also because
Nobili was not one to release his hold on any employer. It
is much more probable, and I find, as Nobili testified, that
he told Gaglio that the Union still considered Construction
to be bound by the agreement; but if Construction was no
longer a signatory, then the funds could not legally accept
the contributions. In any event, on October 1, Mercede ad-
vised all its employees that the Union would not accept con-
tributions on their behalf for the health and welfare plans and
offered them a choice between its own two health plans.
On November 15, 1991, the Regional Director approved
the settlement agreement in the earlier unfair labor practice
case, but Respondents delayed providing the information re-
quested in the questionnaire. Finally, a meeting was arranged
for February 6, 1992, at Respondents’ office in Stamford, at
which Respondents announced to the Union that they had no
obligation to produce any information because Construction
was not bound by any contract, having submitted a timely
withdrawal letter (2) on January 31, 1991, which (like letter
1) was signed by Frank Mercede III, but (unlike letter 1) was
on Construction’s letterhead. It stated:
After careful review of our situation with the Labor-
er’s Local 665, we have decided to withdraw from the
Connecticut Laborer’s District Council.
We feel that it is unfortunate that we cannot resign
this agreement due to one local out of ten within the
state. Please let this letter serve as formal notice of our
withdrawal.
If you should have any questions please do not hesi-
tate to contact us.
Nobili testified that it was at this meeting that he learned that
all of Construction’s employees had been transferred to the
payroll of Mercede. Even so, he contended that all of Mer-
cede’s employees were covered by the master agreement, be-
cause Mercede was the same as Construction.
Whether Construction was no longer bound by any agree-
ment depends on whether it gave a timely notice that effec-
tively terminated the collective-bargaining agreement. The
determination of which of the above two notices (letters 1
and 2) was sent is made more difficult because additional
testimony revealed that two more letters were allegedly sent.
A third letter, also dated January 31, 1991, was signed by
Frank Mercede, Jr. This one, on the letterhead of Mercede,
stated:
As you know, we have many, many problems with
your business agent for the Bridgeport area, Mr. Ron
Nobili. Now, I don’t profess to have done everything
right however, Mr. Nobili’s tactics of constant harass-
ment (going exactly by the book) are intolerable, un-
necessary and unreasonable, especially in todays very
difficult, competitive economy.
I have been responsible for hiring union laborers for
the past 25 years, in the amount of approximately 50
to 250 per year (Dominick, I started out myself as a
member of Labors Union 449). I have worked all over
the state and in Westchester and have never had the
problems that I am having in Bridgeport with Mr.
Nobili. Unless the harassment stops immediately, I will
have no other choice but to cease being a signatory of
the Laborers Agreement.
If you have any questions, please do not hesitate to
call.
The final letter, written on Construction’s letterhead, is
dated March 1, 1991. This one was signed by Frank Mercede
III and stated:
Due to the unnecessary and continued unjustified
harassment by several, actually the business agent from
Bridgeport, I have made a business decision to with-
draw from the Laborers Collective Bargaining Agree-
ments in Connecticut.
One of these letters has to be a fake. Letters 3 and 1 are
inconsistent. Both were written on the letterhead of Mercede,
yet one (letter 1) withdraws from the agreement, and the
other (letter 3) merely threatens withdrawal. Letters 2 and 4
are essentially the same: they are both withdrawals on the
letterhead of Construction, yet they are written more than a
month apart. On their face, something is amiss. Respondents
had to come up with a very good explanation to make them
anything other than fabricators, which manufacture phony
documents in order to win their case. Respondents did not.
First, neither Frank Jr., who was present at the hearing, nor
Frank III testified. They obviously had a huge amount of ex-
plaining to do, and it is just as well that they did not. Sec-
ond, the one who took the stand, Gaglio, was outrageous. He
said, at least on one occasion, that he was standing near
where Frank III dictated the letters, and he saw them being
signed by Frank III. Later, when faced with seemingly dif-
ferent signatures on the letters, he denied that he saw them
signed. He testified that letter 1 went out first; and, once Re-
spondents were advised that it was written on the letterhead
of Mercede, which was not bound by any contract, letter 2
was written. Later, faced with the fact that both are dated the
same day, he denied that he ever said such a thing. I find
him unworthy of belief. I find that letter 2 was a fraud, pre-
pared to deceive the Union and offered in this proceeding to
defraud the Board in its findings of fact. The letter represents
no mere misunderstanding which witnesses often are guilty
of. This is a purposeful fraud; and, because it is, I do not
credit anything else that Gaglio, who had to be privy to the
367CONSTRUCTION LABOR UNLIMITED
5 This is a quotation from the second of the two ‘‘me too agree-
ments’’ signed by Construction.
attempted deception, testified to, except as it was confirmed
or corroborated by a credible witness. Furthermore, I credit
the union witnesses, including Attorney Michael Bearse, who
testified that they had never seen letter 2 until February 6,
1992, a little more than a year after it was dated.
Letter 3 merely threatens that Mercede Jr. would cease
being a signatory to an agreement, so that had no legal ef-
fect. That leaves letters 1 and 4. Letter 1 is arguably ineffec-
tual because it was typed on a Mercede letterhead, and
Mercede was not a signatory to any agreement. The Union
knew, however, when it received letter 1, that it was receiv-
ing a letter from Construction. This proceeding is an attempt
by the Union, in part, to hide behind the fact that the letter
was sent on the wrong letterhead. But there could be no
doubt what the letter intended. Nobili knew that he was the
one who was giving Construction trouble, and it must have
been Construction that wanted to get out of the agreement,
not Mercede, which did not have an agreement. Indeed, the
Union knew something about the relationship between Con-
struction and Mercede. That was the reason for the earlier
filing of the unfair labor practice charge against both Con-
struction and Mercede and the reason that the Union was try-
ing to obtain more information through its questionnaire.
Therefore, even on the wrong letterhead, the notice was suf-
ficient to advise the Union that Construction was trying to
extricate itself from the collective-bargaining agreement.
Letter 4 was mailed by Construction no earlier than March
1. Its notice was too late, only 30 days before the collective-
bargaining agreement’s expiration. All parties agree that
timely notice means 60 days’ notice prior to March 31, 1991,
because that is what the collective-bargaining agreement
states. That agreement provides:
At the expiration of this Agreement as herein pro-
vided, the same shall continue to be effective from year
to year unless either party, at least sixty (60) days prior
to March 31, 1991 or March 31st of any year thereafter,
gives notice in writing to the other party of its intention
to terminate this Agreement and requests that negotia-
tions be entered into for a successor agreement and, in
the event that the parties hereto cannot reach an agree-
ment at least thirty (30) days prior to March 31st of any
year, such party shall give notice of the failure to reach
such agreement to the U.S. Federal Mediation Service
and the Connecticut Board of Conciliation and Arbitra-
tion.
Letter 1 was also served too late. Although January 31, 1991,
appears to be within 60 days of March 31, February had only
28 days, so the letter was late by one day. Accordingly, all
the letters, served or not, legitimate or not, fake or not, were
late.
In addition, all the letters did not seek to terminate the
agreement. Construction was unclear what it wanted to do,
either escape from the agreement or cure Nobili of his tech-
nical interpretations of the agreement. Letter 1 stated that
Construction withdrew from the agreement, a statement that
it was no longer bound by the agreement. Letter 3, written
the same day and signed by the same person, merely threat-
ened to withdraw from the agreement. Letter 4, written a
month later, was a copy of letter 1. However, within months,
after the agreement had expired, Construction was still em-
ploying union members and making contributions to the
union funds on their behalf. That conduct is inconsistent with
the reading of any of the letters that Construction had in-
tended to terminate the agreement. I conclude, for this rea-
son, that Construction did not.
The final issue involves the effect of Construction’s failure
to terminate the agreement timely. Construction became
bound by the collective-bargaining agreement by signing
what the parties refer to as a ‘‘me too’’ agreement, in which
it stated that it had reviewed, accepted, and approved the col-
lective-bargaining agreement between the Council and the
AGC, and further:
The undersigned Employer also accepts and agrees
to be bound by all of the terms and conditions of any
successor agreement(s) to the foregoing Agreements
which may be entered into subsequent to the date here-
of, unless the undersigned Employer or the Union gives
timely, written notice to the other party of its intention
to change or terminate a particular collective bargaining
agreement in accordance with its terms.5
The General Counsel contends that Construction was
bound for the term of the successor agreement, as the ‘‘me
too’’ agreement clearly states, in which event it was bound
for 2 years. Respondents argue that Construction was bound
for only 1 year, relying on the ‘‘Duration of Agreement’’
provision of the collective-bargaining agreement. However,
that provision speaks only of the situation in which one of
the parties to that agreement, the AGC or the Council, fails
to notify the other that it wished to terminate the agreement.
In that event, the agreement continues in force for another
year. However, the ‘‘me too’’ agreement provides that, if
Construction does not give the required notice, it becomes
bound by the terms of any successor agreement that is en-
tered into. In this instance, the parties to the master agree-
ment entered into a 2-year agreement, by which Respondents
are now bound. Had those parties entered into a 3-year
agreement, Respondents would have been bound for 3 years.
Had they entered into a 1-year agreement, Respondents
would have been bound for only 1 year. Had the parties
given no notice to each other, so that the collective-bargain-
ing agreement automatically renewed itself for one year, and
Construction had not timely notified the Union, Respondents
would have been bound by the agreement for only 1 year.
The clauses of the collective-bargaining and ‘‘me too’’
agreements are neither irreconcilable or contradictory or un-
lawful, as Respondents contend. E. L. Wagner Co., 294
NLRB 493 (1989).
About October 1, 1991, Respondents unilaterally and with-
out the consent of the Union failed to continue in full force
and effect all the terms and conditions of the collective-bar-
gaining agreement. Those terms and conditions are manda-
tory subjects for the purpose of collective bargaining. I con-
clude that Respondents failed to bargain collectively and in
good faith with the Union in violation of Sections 8(a)(5)
and (1) and 8(d) of the Act. In so doing, I conclude that Re-
spondents constitute a single employer, because an employer-
wide unit is appropriate. At least at the beginning, Mercede
employed one laborer, Llera, while Construction employed
other laborers. All laborers were supervised by the same su-
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I express no opinion about the rather unusual nature in which the
issue regarding the demand for information has been brought for dis-
position. Normally, the General Counsel would have sought to set
aside the earlier settlement agreement. Here, he relies on a new de-
mand, the same as the old, which raises problems under Sec. 10(b),
yet have not been pressed by Respondent. The issue was originally
raised by a timely filed charge in Case 35–CA–4966. If the General
Counsel had sought to set aside the settlement agreement in that
case, there would have been no 10(b) issue, so the whole matter may
be moot.
7 The General Counsel’s unopposed motion to correct the record
to reflect accurately R. Exhs. 3 and 4 is granted. ‘‘Attachment A’’
to the complaint is also amended by adding to it the second page
containing questions 7 through 13.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
perintendent, presumably had the same skills, and performed
the same services. When the dealings between Respondents
and the Union became more strained, Llera was transferred
from Construction’s payroll to Mercede’s and then all the re-
maining laborers were similarly transferred. Thus, there was
no separate double-breasted operation here. Rather, it was
wholly integrated. The collective-bargaining agreement thus
applies to the laborers employed by Mercede, and the relief
granted flows against both Employers.
In addition, the questionnaire to Construction, sent on De-
cember 18, 1991, has never been answered, although the
Union made demands orally for answers to the questionnaire
on February 6 and March 6, 1992. I find that the information
requested is necessary for and relevant to the Union’s per-
formance of its duties as the exclusive collective-bargaining
representative of the unit. The transfer of Llera from the pay-
roll of Construction to that of Mercede and the relationship
of Gaglio to both Employers were enough to make relevant
the Union’s search for information.
Respondents contend that their admission of many of the
complaint’s allegations involving the relationship between
Construction and Mercede has obviated the need to answer
the questionnaire. However, the admissions are conclusory;
and the Union is entitled to information that will permit it
to pursue other avenues in its attempt to link the two Em-
ployers. The questionnaire also asks for much information
that is not encompassed within the scope of the admissions.
Finally, Respondents admitted the allegations only at the
hearing, 9 months after the Union demanded answers to the
questionnaire. Respondents cite no authority permitting a
waiver of their lengthy delay. I conclude that, since February
6, 1992, Respondents have failed and refused to furnish the
Union the requested information, in violation of Section
8(a)(5) and (1) of the Act.6
The unfair labor practices found herein, occurring in con-
nection with Respondents’ businesses, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, I shall recommend that they cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Specifically, I shall order Re-
spondents to give full force and effect, retroactive to August
10, 1991, to the collective-bargaining agreement between the
Council and the AGC, dated April 1, 1991, and until the
agreement expires. Respondents must make whole those
former and current bargaining unit employees who worked
for Respondents for any loss of wages and benefits they may
have incurred as a result of Respondents’ failure to apply the
collective-bargaining agreement to them, in the manner pre-
scribed in Ogle Protection Service, 183 NLRB 682 (1970),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Respondent must also reimburse the
contractually established benefits funds for contributions not
paid on behalf of the employees, with interest computed as
prescribed in Merryweather Optical Co., 240 NLRB 1213
(1979). Respondents shall also reimburse employees for the
costs they incurred, such as payments to health care provid-
ers and third-party insurers, because of Respondents’ failure
to make contributions to the contractual health and welfare
funds on their behalf. I recommend that Respondents should
be required to answer the questionnaire that the Union re-
quested, if the Union should so request and if the Region’s
compliance officer deems that the material is still relevant.
It may be that the Union’s need for the information will be
satisfied by the finding in this decision that Respondents
constitute a single employer. Finally, in view of the nature
of employment in the construction industry, I find that post-
ing notices at Respondents’ places of business is inadequate
to inform their present and former employees of their rights
under this decision. Therefore, I shall order that, in addition
to posting the attached notice at their places of business, Re-
spondents post copies of the notice at their jobsites and fur-
nish signed copies of the notice to the Union for posting at
the Union’s office and meeting places.
On these findings of fact and conclusions of law and the
entire record in this proceeding,7 including my observation of
the demeanor of the witnesses as they testified, and my con-
sideration of the briefs filed by the General Counsel and Re-
spondents, I issue the following recommended8
ORDER
The Respondents, Construction Labor Unlimited, Inc.
Frank Mercede Jr. Construction Group, Inc. Stamford, Con-
necticut, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to recognize and bargain collec-
tively in good faith with Connecticut Laborers District Coun-
cil for its Local Union 665, Laborers’ International Union of
North America, AFL–CIO (Union), as the exclusive bargain-
ing representative of their employees in the following appro-
priate unit, and failing or refusing to honor collective-bar-
gaining agreements applicable to those employees:
All laborers employed by Respondents, excluding all
other employees, office clerical employees and guards,
professional employees and supervisors as defined in
the Act.
(b) Failing or refusing to provide information that is nec-
essary for and relevant to the Union’s performance of its du-
369CONSTRUCTION LABOR UNLIMITED
9 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.’’
ties as the collective-bargaining representative of Respond-
ents’ employees in the above unit.
(c) In any like or related manner interfering with, restrain-
ing, or coercing their employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Maintain and give full effect to the 1991–1993 collec-
tive-bargaining agreement between the Council and the AGC,
retroactive to August 10, 1991, including but not limited to:
(1) making whole all of Respondents’ unit employees for any
loss of wages and benefits they may have incurred because
of Respondents’ failure to apply or maintain the established
terms and conditions of such agreement; (2) making required
payments to the various trust funds established by the collec-
tive-bargaining agreement; and (3) reimbursing their employ-
ees for any expenses they incurred by reason of Respond-
ents’ failure to make such contributions; all as set forth in
the remedy section of this decision.
(b) On request of the Union, answer the questionnaire that
the Union sent to Respondents on December 18, 1991.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at their places of business and at each of their
jobsites copies of the attached notice marked ‘‘Appendix
B.’’9 Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after being signed by Re-
spondents’ authorized representatives, shall be posted by Re-
spondents immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(e) Sign and return to the Regional Director for Region 34
sufficient copies of the notice for posting by the Union, if
it is willing, at its office and meeting halls, including all
places where notices to members are customarily posted.
(f) Notify the Regional Director for Region 34 in writing
within 20 days from the date of this Order what steps Re-
spondents have taken to comply.
APPENDIX A
1. Describe the type of business in which your company
engages. Describe the type of business in which the non-
union company engages.
2. Describe the geographic area in which your company
does business. Describe the geographic area in which the
non-union company does business.
3. State the business address(es) and identify all office lo-
cations of your company. State the business address(es) and
identify all office locations of the non-union company.
4. Identify your company’s post office box(es) by number
and location. Identify the non-union company’s post office
box(es) by number and location.
5. Identify your company’s business phone number(s) and
directory listing(s). Identify the non-union company’s busi-
ness phone number(s) and directory listing(s).
6. Identify the banking institution, branch location, and ac-
count number of your company’s bank account(s). Identify
the banking institution, branch location, and account number
of your company’s bank account(s).
7. Identify the banking institution, branch location, and ac-
count number of your company’s payroll account(s) not iden-
tified above. Identify the banking institution, branch location,
and account number of the non-union company’s payroll ac-
count(s) not identified above.
8. Identify where and by whom your company’s account-
ing records are kept. Identify where and by whom the non-
union company’s accounting records are kept.
9. Identify your company’s principal accountant. Identify
the non-union company’s principal accountant.
10. Identify where and by whom your company’s cor-
porate records are kept. Identify where and by whom the
non-union company’s corporation records are kept.
11. Identify where and by whom your company’s cor-
porate records are kept. Identify where and by whom the
non-union company’s corporation records are kept.
12. Identify your company’s principal bookkeeper. Identify
the non-union company’s principal bookkeeper.
13. Identify your company’s principal payroll preparer.
Identify the non-union company’s principal preparer.
14. Identify your company’s contractor license number for
states where it does construction business. Identify the non-
union company’s contractor license number for states where
it does construction business.
15. Identify the carrier and policy number for your compa-
ny’s workers compensation insurance. Identify the carrier and
policy number for the non-union company’s workers com-
pensation insurance.
16. Identify the carrier and policy number for your compa-
ny’s other health insurance program(s). Identify the carrier
and policy number for the non-union company’s other health
insurance program(s).
17. (a) Identify your company’s federal taxpayer identi-
fication number. Identify the non-union company’s federal
taxpayer identification number. (b) Identify where and by
whom your company’s federal tax returns are kept. Identify
where and by whom your company’s federal tax returns are
kept.
18. (a) Identify your company’s other federal or state tax-
payer identification numbers. Identify the non-union compa-
ny’s other federal or state taxpayer identification numbers.
(b) Identify where and by whom your company’s other
federal or state tax reports are kept. Identify where and by
whom the non-union company’s other federal or state tax re-
ports are kept.
19. Identify amount(s) involved, reason(s) for, and date(s)
of transfer of any funds between your company and the non-
union company.
20. Identify source(s) and amount(s) of your company’s
line(s) of credit. Identify source(s) and amount(s) of the non-
union company’s line(s) of credit.
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21. Identify amount(s) involved and date(s) when your
company has operated its capital with a guarantee of per-
formance by the non-union company.
Identify amount(s) involved and date(s) when the non-
union company has operated its capital with a guarantee of
performance by your company.
22. Identify business(es) to whom your company rents,
leases, or otherwise provides office space.
Identify business(es) to whom the non-union company
rents, leases, or otherwise provides office space.
23. Identify the calendar period and terms by which your
company provides office space to the non-union company, or
is provided with office space by the non-union company.
24. Identify your company’s building and/or office suppli-
ers. Identify the non-union company’s building and/or office
supplies [sic].
25. Identify by item(s) purchased, date(s) of purchase, and
dollar volume of purchase(s) those building and/or office
supplies not purchased separately by your company and the
non-union company.
26. Identify business(es) that use your company’s (a) tools
or (b) equipment. Identify business(es) that use the non-union
company’s (a) tools or (b) equipment.
27. Identify business(es) to whom your company sells,
rents, or leases its
(a) operating equipment (b) office equipment, (c) construc-
tion equipment, or (d) tools. Identify business(es) to whom
the non-union company sells, rents, or leases its (a) operating
equipment (b) office equipment (c) construction equipment
or (d) tools.
28. Identify business(es) from whom your company buys,
rents, or leases its equipment. Identify business(es) from
whom the non-union company buys, rents, or leases its
equipment.
29. Identify those equipment transactions that your com-
pany arranges by written agreement. Identify those equip-
ment transactions that the non-union company arranges by
written agreement.
30. Regarding equipment transactions between your com-
pany and the non-union company, identify the purchase, rent-
al, or lease rate, equipment involved, calendar period, and
dollar volume of each transaction.
31. Regarding equipment transactions between your com-
pany and businesses separate from the non-union company,
identify the purchase, rental, or lease rate, equipment in-
volved, calendar period, and dollar volume of each trans-
action.
32. Regarding equipment transactions between the non-
union company and businesses separate from the non-union
company, identify the purchase, rental, or lease rate, equip-
ment involved, calendar period, and dollar volume of each
transaction.
33. Identify those of the following services that are pro-
vided to the non-union company by or at your company.(a)
administrative(b) bookkeeping(c) clerical(d) detailing(e)
drafting(f) engineering(g) estimating(h) managerial(i) pattern-
making(j) sketching(k) other
34. Identify those of the following services that are pro-
vided to the your company by or at the non-union com-
pany.(a) administrative(b) bookkeeping(c) clerical(d) detail-
ing(e) drafting(f) engineering(g) estimating(h) managerial(i)
patternmaking(j) sketching(k) other
35. Identify where your company advertises for customer
business. Identify where the non-union advertises for cus-
tomer business.
36. Identify your company’s customers. Identify the non-
union company’s customers.
37. Identify customers your company has referred to the
non-union company. Identify customers the non-union com-
pany has referred to your company.
38. What customers of the non-union company are now or
were formerly customers for your company.
39. Regarding customers identified above as common to
your company and the non-union company, state the calendar
period and dollar volume of work performed for the cus-
tomer by your company. Regarding customers identified
above as common to your company and the non-union com-
pany, state the calendar period and dollar volume of work
performed for the customer by the non-union company.
40. State the dollar volume of business per job performed
by your company. State the dollar volume of business per
job performed by the non-union company.
41. Does your company negotiate jobs to obtain work?
Does the non-union company negotiate jobs to obtain work?
42. Does your company bid jobs to obtain work? Does the
non-union company bid jobs to obtain work?
43. Identify those persons who bid and or negotiate your
company’s work. Identify those persons who bid and or ne-
gotiate the non-union company’s work.
44. State the dollar volume minimum and or maximum (if
any) as established by law or regulation, that your company
may bid on public works projects. State the dollar volume
minimum and or maximum (if any) as established by law or
regulation, that the non-union company may bid on public
works projects.
45. Identify by customer, calendar period, and dollar vol-
ume any job(s) on which your company and the non-union
company have bid competitively.
46. Identify by customer, calendar period, and dollar vol-
ume any work which your company has subcontracted to, or
received by subcontract from the non-union company.
47. Identify subcontract work arranged by written agree-
ment between your company and the non-union company.
48. State the reason for each subcontract let by your com-
pany. State the reason for each subcontract let by the non-
union company.
49. Identify by customer, calendar period, and dollar vol-
ume any projects on which your company has succeeded, or
been succeeded by, the non-union company.
50. Identify work your company performs on the non-
union company’s products. Identify work the non-union com-
pany performs on your company’s products.
51. Identify where your company advertises for employee
hires. Identify where the non-union company advertises for
employee hires.
52. Identify by job title or craft position the number of
employees employed by your company per pay period. Iden-
tify by job title or craft position the number of employees
employed by the non-union per pay period.
53. Identify the skills that your company’s employees pos-
sess. Identify the skills that the non-union company’s em-
ployees possess.
371CONSTRUCTION LABOR UNLIMITED
54. Identify where your company’s employees report for
work. Identify where the non-union company’s employees re-
port for work.
55. Identify by job title or craft position and respective
employment dates those employees of your company who
are or have been employees at the non-union company.
56. Identify by job title or craft position and respective
employment dates those employees of the non-union com-
pany who are or have been employees at your company.
57. Identify by job title or craft position and transfer dates
those employees otherwise transferred between your com-
pany and the non-union company.
58. Identify projects of each company on which these em-
ployees were working at the time of the transfer.
59. Identify your company’s (a) supervisors, (b) job super-
intendents, and (c) forepersons or other supervisory persons
with authority to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employ-
ees, or responsible to direct employees , or to adjust their
grievances, or effectively to recommend such action. Identify
the non-union company’s (a) supervisors, (b) job super-
intendents, and (c) forepersons or other supervisory persons
with authority to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employ-
ees, or responsible to direct employees , or to adjust their
grievances, or effectively to recommend such action.
60. Regarding those supervisory persons described above
as common to your company and the non-union company,
identify the period(s) of employment with each company.
61. Identify your company’s personnel ever authorized to
supervise the non-union company’s employees. Identify the
non-union company’s personnel ever authorized to supervise
your company’s employees.
62. Identify by project involved, personnel employed, and
date of event, any occasion when your company’s personnel
performed a supervisory function for the non-union company.
Identify by project involved, personnel employed, and date
of event, any occasion when the non-union company’s per-
sonnel performed a supervisory function for your company.
63. Identify your company’s managerial personnel having
authority to formulate and effectuate management policies or
otherwise able to recommend or to exercise discretionary ac-
tion within or even independently of established policy. Iden-
tify the non-union company’s managerial personnel having
authority to formulate and effectuate management policies or
otherwise able to recommend or to exercise discretionary ac-
tion within or even independently of established policy.
64. Identify your company’s representatives who have au-
thority to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward or discipline supervisory personnel, or
responsible to direct supervisory personnel, or to adjust their
grievances, or effectively to recommend such action. Identify
the non-union company’s representatives who have authority
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward or discipline supervisory personnel, or respon-
sible to direct supervisory personnel, or to adjust their griev-
ances, or effectively to recommend such action.
65. Identify your company’s representatives otherwise ac-
tively involved with day-to-date [sic] management or oper-
ations. Identify the non-union company’s representatives oth-
erwise actively involved with day-to-day management or op-
erations.
66. Identify by title and respective dates of employment
those managerial personnel of your company ever employed
by the non-union company. Identify by title and respective
dates of employment those managerial personnel of the non-
union company ever employed by our [sic] company.
67. Describe your company’s compensation program in-
cluding employee wage rates. Describe the non-union compa-
ny’s compensation program including employee wage rates.
68. Describe your company’s fringe benefit benefits pro-
gram. Describe the non-union company’s fringe benefits pro-
gram.
69. Describe your company’s labor relations policy. De-
scribe the non-union company’s labor relations policy.
70. Identify your company representative(s) who establish
or otherwise control labor relations policy. Identify the non-
union company representative(s) who establish or otherwise
control labor relations policy.
71. Identify your company’s labor relations representa-
tive(s). Identify the non-union company’s labor relations rep-
resentative(s).
72. Identify your company’s legal counsel on labor rela-
tions matters. Identify the non-union company’s legal counsel
on labor relations matters.
73. Identify your company’s membership status in the As-
sociated General Contractors. Identify the non-union compa-
ny’s membership status in the Associated General Contrac-
tors.
74. Identify your company’s membership status in any
other employer association. Identify the non-union compa-
ny’s membership status in any other employer association.
75. Identify your company’s officers. Identify the non-
union company’s officers.
76. Identify your company’s directors. Identify the non-
union company’s directors.
77. Identify place(s) and date(s) of your company’s direc-
tors meetings. Identify place(s) and date(s) of the non-union
company’s directors meetings.
78. Identify your company’s owners and/or stockholders.
Identify the non-union company’s owners and/or stockhold-
ers.
79. Identify the ownership interest held among your com-
pany’s owners and/or stockholders. Identify the ownership
interest held among the non-union company’s owners and/or
stockholders.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to recognize and bargain col-
lectively in good faith with Connecticut Laborers District
Council for its Local Union 665, Laborers’ International
Union of North America, AFL–CIO (Union), as the exclu-
sive bargaining representative of our employees in the fol-
lowing appropriate unit, and fail or refuse to honor collec-
tive-bargaining agreements applicable to those employees:
All laborers employed by Construction Labor Unlim-
ited, Inc., and Frank Mercede Jr. Construction Group,
Inc., excluding all other employees, office clerical em-
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees and guards, professional employees and super-
visors as defined in the Act.
WE WILL NOT fail or refuse to provide information that is
necessary for and relevant to the Union’s performance of its
duties as the collective-bargaining representative of our em-
ployees in the above appropriate unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL maintain and give full effect to the 1991–1993
collective-bargaining agreement between the Connecticut La-
borers District Council of the Laborers International Union
of North America, AFL–CIO and the Labor Relations Divi-
sion of the Associated General Contractors of Connecticut,
Incorporated, retroactive to August 10, 1991, including but
not limited to: (1) making whole all of our unit employees
for any loss of wages and benefits they may have incurred
because of our Respondents’ failure to apply or maintain the
established terms and conditions of such agreement; (2) mak-
ing required payments to the various trust funds established
by the collective-bargaining agreement; and (3) reimbursing
our employees for any expenses they incurred by reason of
our failure to make such contributions.
WE WILL on request of the Union, answer the question-
naire that the Union sent to us on December 18, 1991.
CONSTRUCTION LABOR UNLIMITED, INC./
FRANK MERCEDE JR. CONSTRUCTION GROUP,
INC.