M & M Building and Electrical Contractors, Inc., d/b/a M & M Contractors

National Labor Relations Board - Board Decisions

Jul 30, 1982

262 N.L.R.B. 1472 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M & M Building and Electrical Contractors, Inc.,
d/b/a M & M Contractors and Carpenters
Local No. 266, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO. Case
32-CA-3254
July 30, 1982
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
DECISION AND ORDER
On November 23, 1981, Administrative Law
Judge William J. Pannier III issued the attached
Decision in this proceeding. Thereafter, the Charg-
ing Party filed exceptions and a supporting brief,
and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Members Fanning and Zimmerman note the fol-
lowing in adopting the finding that Respondent's
unilateral implementation of changes did not vio-
late Section 8(a)(5). When a union, in response to
an employer's diligent and earnest efforts to engage
in bargaining, insists on continually avoiding or de-
laying bargaining, an employer may be justified in
implementing unilateral changes in the terms and
conditions of employment. See, e.g., AAA Motor
Lines, Inc., 215 NLRB 793 (1974). However, before
imposing any changes, an employer, as a part of
demonstrating its diligence and good faith, must
present the union with its detailed contract propos-
als and permit the union a reasonable time to evalu-
ate the proposals. Here, Respondent's unilateral im-
plementation of the changes in the terms and con-
ditions of employment occurred only 5 days after
the Union had received the employer's written de-
tailed contract proposal but also after the Union
over a period of 7 months had clearly manifested
its aversion to bargaining with Respondent. Nor-
mally, an employer must allow a union more than
the 5-day period, present in this case, between the
time the union receives the employer's proposed
contract changes and the time the employer imple-
ments those changes. However, in light of the par-
ticular circumstances present here, especially the
Union's refusal from April to early November to
give Respondent a date on which it would meet to
bargain, and the Union's early November demands
for an immediate meeting followed by refusal and
262 NLRB No. 181
delay in setting up a meeting date, Members Fan-
ning and Zimmerman agree that Respondent did
not violate Section 8(a)(5) by implementing on No-
vember 24 the changes which had been proposed
on November 19.
Chairman Van de Water concurs in the result
reached herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, M & M Build-
ing and Electrical Contractors, Inc., d/b/a M & M
Contractors, Stockton, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMEN r OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Stockton, California, on
July 21 and 22, 1981. On January 23, 1981, the Regional
Director for Region 32 of the National Labor Relations
Board issued a complaint and notice of hearing, based
upon unfair labor practice charge filed on December 10,
1980, alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended, 29 U.S.C.
151, et seq., herein called the Act. All parties have been
afforded full opportunity to appear, to introduce evi-
dence, to examine and cross-examine witnesses, and to
file briefs. Based upon the entire record, upon the briefs
filed on behalf of the parties, and upon my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
At all times material, M & M Building and Electrical
Contractors, Inc. d/b/a M & M Contractors, herein
called Respondent, has been a California corporation
with an office and place of business in Stockton, Califor-
nia, and has been engaged in performing nonretail fram-
ing and electrical work in the construction industry.
During the 12-month period prior to issuance of the
complaint, Respondent, in the course and conduct of its
business operations, sold goods and services valued in
excess of $50,000 to customers or business enterprises
within the State of California, which customers or busi-
ness enterprises themselves met one of the Board's juris-
dictional standards, other than the indirect inflow or out-
flow standards. In view of these factors, I find that at all
times material Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1472
M & M CONTRACTORS
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Carpenters Local No. 266,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, herein called the Union, has been a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE ALL.EGED UNFAIR LABOR PRACTICES
A. The Issues
While this record consists of a significant amount of
evidence pertaining to identities of employees employed
on specific projects during particular time periods from
May 1979 through December 1980, most of that evi-
dence need not be recited in detail in view of the issues
posed in the briefs. Prior to early 1979, Joseph Maldon-
ado, Jr., and Rick Michelsen had been operating as a
general partnership performing primarily small framing
and electrical jobs.' They had not hired any employees,
but had rather been performing all the work themselves.
However, in early 1979, their partnership had been
awarded a subcontract for the performance of certain
framing and rough carpentry work on phase I of the
Grand Canal Apartments project in Stockton. This
project was of sufficient magnitude to require that em-
ployees be hired to perform it. After arranging for cer-
tain individuals to be hired once work was scheduled to
commence, Maldonado, on behalf of the partnership, ex-
ecuted a collective-bargaining agreement whereby the
Union became the collective-bargaining representative of
employees in an appropriate bargaining unit of all full-
time and regular part-time employees; excluding office
clerical employees, guards, and supervisors as defined in
the Act. The date of execution written on that agreement
is May 1, 1979. It had a stated expiration date of June 15,
1980.
Between May 1979 and June 1980, the partnership per-
formed a total of four projects on which it employed em-
ployees. 2 In addition to those employees who had al-
ready been active union members when hired by Mal-
donado and Michelsen, all employees whom they hired
either became members of the Union or became current
in their union membership standing pursuant to the
union-security clause in the collective-bargaining agree-
ment. From July until December 1980, no employees
were hired; only Maldonado and Michelsen worked on
projects for which Respondent had bid successfully.
However, the partners had continued to bid for work on
projects and, in November 1980, were successful in ob-
taining a contract for work on the Brookside Condomin-
iums followed by one for work to be performed in Fair-
field, California. In late November 1980, the partnership
hired one employee for the Brookside project. Then, on
November 3. Respondent hired eight employees to work
In approximately the summer of 1980, Maldonado and Michelsen
became incorporated as Respondent.
2 Phase I of the Grand Canal Apartments project lasted until the end
of 1979 Phase II of that same project lasted from approximately January
2 through April 1, 1980. The partnership also performed work on the
Cookbook Restaurant project from February 26 to June 5. 1980, and on
the Benjamin Holt Office Building project from April 27 through June
198(
on the project in Fairfield. On succeeding dates in that
same month, a total of 25 additional employees were
hired to work there. Moreover, on December 17, two
more employees were hired to work for Respondent on
the Brookside project.
As noted above, the collective-bargaining agreement
had expired on June 15, 1980.3 On April 14, William A.
Schuckman, attorney for the partners, wrote a letter
seeking to initiate negotiations for a new collective-bar-
gaining agreement. As detailed further below, a chain of
correspondence pertaining to this subject then followed,
leading to a November 26 letter by Schuckman in which
he withdrew recognition of the Union as the representa-
tive of Respondent's employees in the above-described
bargaining unit and, further, announced implementation
of certain changes in terms and conditions of employ-
ment of those employees. The complaint alleges that Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally making these changes in terms and condi-
tions of employment and by withdrawing recognition of
the Union. Respondent, conversely, states in its brief that
it
is asserting two principle [sic] defenses in this
action, each of which is sufficient to warrant the
complete dismissal of the General Counsel's Com-
plaint. First, Respondent contends that it did in fact
lawfully bargain to impasse with the Union no later
than November 21, 1980. Second, Respondent con-
tends that it had sufficient objective grounds for
doubting the Union's majority status as of Novem-
ber 26, 1980, and furthermore, that the Union had
in fact lost the support of a majority of the employ-
ees in the unit of [Respondent's] carpentry employ-
ees as of that date.
I find that a preponderance of the evidence supports the
General Counsel's allegation that Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recog-
nition from the Union, but I further find that a prepon-
derance of the evidence will not support the conclusion
that Respondent violated the Act by implementing the
changes in terms and conditions of employment which it
did.
B. The Correspondence Between the Parties
In his letter of April 14, sent to Delta-Yosemite Dis-
trict Council of Carpenters, herein called Delta-Yosem-
ite, Schuckman requested that negotiations be com-
menced for a collective-bargaining agreement to succeed
the one scheduled to expire on June 15. By letter dated
April 16, Delta-Yosemite Business Representative
Donald L. Stewart replied that, to be effective, notices
pertaining to the collective-bargaining agreement had to
be submitted to the Carpenters 46 Northern California
Counties Conference Board, herein called Conference
Board, for which Delta-Yosemite was "not authorized to
accept communications .... " By letter, bearing the
same date as Stewart's letter, Lawrence E. Bee, execu-
tive director of the Conference Board, notified Maldon-
I Unless otherwise stated all dates hereafter occurred in 1980.
1473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ado and Michelson that their collective-bargaining agree-
ment had been opened for negotiation "with the appro-
priate signatory Association" and that, upion conclusion
of those negotiations, the partners would receive "a sum-
mary of the changes, amendments, modifications, exten-
sions and/or renewals to said Agreements [sic]." 4 On
April 18, Schuckman sent a letter to Bee, reciting the
same substantive communication as had been contained
in his letter sent to Delta-Yosemite on April 14. Further,
on May 9, he replied directly to Bee's letter, by sending
a letter which denied that the partnership was part of
any association and which, again, offered to meet for ne-
gotiations.
Because Schukman's April 18 letter had been misfiled,
not until August 11 did Bee, having come across Schuck-
man's letter in the file of another employer, reply to it.5
In his letter of August 11, Bee stated that the April 18
letter from Schuckman had been "received in this office
after the contractual cutoff and therefore was untimely."
Schuckman had started his vacation on August 11 and
did not return to his office until the last Monday in that
month, at which point he had found himself confronting
"a mountain of letters and work on [his] desk." Thus it
had not been until September 16, "in the ordinary course
of trying to dig out from [his] vacation," that he had re-
plied to the August 11 letter. In a letter dated September
16, Schuckman stated that the April notice had been
served in a timely fashion, pointed out that Respondent
had not received any response to his previous offer to
negotiate separately, and asserted that Respondent stood
ready to negotiate "at any time mutually convenient."
However, this letter also went unanswered by the Con-
ference Board.
Instead, Bee had attempted to contact Maldonado di-
rectly by telephone. 6 Maldonado referred these mes-
sages, left when Bee called, to Schuckman who, as Re-
spondent's representative, attempted to return those tele-
phone calls. However, as Schuckman phrased it, "We
weren't able to get together by phone."7 Finally,
Schuckman sent a letter, dated October 8, to the Confer-
ence Board stating that Bee had been unavailable when
efforts had been made to return his (Bee's) telephone
calls and that Respondent "continue[s] to stand ready to
negotiate with you . . . at any time mutually conven-
ient." However, Schuckman received no response to this
letter during the remainder of the month of October.
4 During the hearing, counsel for the Charging Party stated that its
position was that there had been no timely withdrawal from association-
wide bargaining by the partnership and, accordingly, that Respondent
was not entitled to bargain separately. Counsel for the General Counsel,
however, stated that it was the General Counsel's position that timely
and effective notice had been given. Inasmuch as the timeliness of the
notice is not an issue posed by the complaint, this is a question that need
not be and is not addressed in this Decision.
° Bee did not deny having received Schuckman's May 9 letter, but no
explanation was advanced for hlaving failed to respond to it.
6 Bee testified that he had made these attempts to contact Maldonado
because "I knew a Joseph Maldonado [who] was a member of Local
Union 668 in Palo Alto. And I was just wondering if it was the same
Joseph Maldonado, and if it was, I figured I could talk to him about
what the real status was."
Bee acknowledged that, during this period, Schuckman had placed
"[t]wo or three calls" to Bee, but did not claim to have returned those
calls and did not explain his reason for having failed to do so.
On November 5, Michael B. Roger, counsel for the
Charging Party, sent a letter to Schuckman demanding,
on behalf of the Conference Board, "an immediate meet-
ing for purposes of collective-bargaining," and instruct-
ing Schuckman to "contact Mel Ward, Delta-Yosemite
District Council of Carpenters . . . as to your available
dates when said meeting may be scheduled. " 8 Roger's
letter shows that a carbon copy of it had been sent to
Ward specifically, as well as to Bee. In addition, by tele-
gram to Respondent, dated November 12, Ward demand-
ed that he be contacted to arrange "an immediate meet-
ing . . . ."
During early November, Schuckman had been in-
volved in trials in cities other than the one in which his
office is located. Thus, not until Friday, November 14,
was he able to review the correspondence that had been
received in his absence. During the afternoon of that
same day, he telephoned Ward to arrange for a meeting.
However, when Ward ascertained that Schuckman was
an attorney, he terminated further discussion of the
matter and instructed Schuckman to contact Roger.9
Schuckman's efforts to reach Roger during t'-- remain-
der of November 14 proved unsuccessful. Accordingly,
he sent Roger a telegram, explaining what Ward had said
and, as a "preliminary offer," stating that Respondent
would accept the terms of the master agreement, already
negotiated with other employers, "With the exception of
wage and fringe package and with further exception of
paragraph 50 relating to non-union and subcontractors."
In the telegram, Schuckman also stated that this offer
would remain open until noon on November 17.
On Monday, November 17, Schuckman renewed his
efforts to attempt to reach Roger by telephone, but was
unable to do so. By this point, testified Schuckman, Re-
spondent "was in need of hard data . . . as to what his
labor costs were going to be. That's a substantial portion
of his overhead in his business. It's almost all of it."
Moreover, Schuckman felt that, after 6 months of unsuc-
cessful efforts to institute negotiations, "I had finally
managed to get something going" and "I wanted to try
to keep them moving. I was trying to light the fires up in
getting them going." Thus, he sent a mailgram to Roger,
reciting that Respondent had attempted to institute nego-
tiations "on several occasions including 4 telephone calls
to your office on 11-17-80," and stating that the terms
recited in the November 14 telegram should be consid-
ered a final offer which would be implemented on No-
vember 19 if he was not contacted on November 18.
This approach proved effective, for on November 18 he
finally received a telephone call from Roger.
8 Roger explained:
The reason why I was told to contact M & M. as my understanding
was, there was a problem, some question pertaining to whether or
not M & M was bound to the agreement, or was living up to the
agreement, or was contending they weren't bound and entitled to ne-
gotiate.
That was what I put into context as the problem. We were trying
to resolve that problem.
9 Roger testified that "the policy we had undertaken since April was
that when employers were represented by counsel, and if those counsel
were strangers to the Union representatives, that the matters were to be
turned over to the Union's counsel--myself-for followup."
1474
M & M CONTRACTORS
Schuckman testified that there had been two telephone
conversations, one on November 18 and another on No-
vember 19, between Roger and himself. Roger testified
that he believed that there had been only a single con-
versation during which substantive issues had been dis-
cussed, although he conceded that he was not 100 per-
cent certain of that fact and, in addition, testified that he
believed that he had "had another conversation with
(Schuckman] trying to establish the time and place for a
face-to-face meeting." However, both attorneys agreed
that Schuckman had proposed "$10 an hour with no
fringes," as Roger put it,'o and elimination of the sub-
contracting provision. Moreover, Schuckman testified
that, at the conclusion of the November 19 telephone
conversation, he had suggested a number of dates be-
tween November 20 and 25 for scheduling "an immedi-
ate meeting" and that he had asked Roger to speak to his
client regarding the acceptability of these dates. Accord-
ing to Schuckman, Roger had promised to do so and to
"get back to me that afternoon." Roger agreed that he
had promised "to call [Schuckman] to establish a date for
a meeting." At no point was it disputed that Roger had
promised to "get back" to Schuckman, regarding the
date for such a meeting, during the afternoon of Novem-
ber 19.
However, Roger never did call Schuckman during the
remainder of the afternoon of November 19, following
their telephone conversation." Having not received the
promised telephone call from Roger, Schuckman sent
him a mailgram, summarizing that Respondent was offer-
ing a wage rate of $10 per hour for journeyman carpen-
ters with porportional rates to be paid to other classifica-
tions, cessation of fringe benefit contributions, and elimi-
nation of the restrictions on subcontracting contained in
paragraph 50 of the master agreement. In the mailgram,
Schuckman also recited that Roger had promised to con-
tact his client and to call during the afternoon of No-
vember 19 to report on an acceptable date for a meeting,
and then stated:
When you failed to contact me as promised, I
phoned and was advised you were no longer in. It
is self-evident that you are refusing to negotiate in
good faith and that in fact an impasse has been
reached. We therefore demand in person negotia-
tions no later than 11/21/80. If those negotiations
do not occur, we will assume that an impasse has
occurred-and proceed accordingly.
Roger testified that he had not received this mailgram
until after he had dictated a letter to Schuckman on
Thursday, November 20, relating that his clients "have
advised me that they are not available until the week of
December 8, 1980, for purposes of meeting in Stockton
with respect to collective bargaining." Nevertheless, on
that same morning, picketing had commenced at the
I0 With regard to alternative wage rates, Roger testified that "I told
him it would be easiest if he simply contacted Mel Ward, who was the
District Council Secretary, because he knew exactly what the rates
were." Of course, Schuckman already had attempted to talk with Ward,
but without success.
I In fact, Roger did not discuss the matter with his client until at least
Thursday, November 20.
Brookside Condominium project site, where apparently
Maldonado and Michelsen themselves were working,
with signs accusing Respondent of having committed
unfair labor practices.
Having observed the pickets on November 20,
Schuckman sent a mailgram to Roger that same day,
noting the existence of the picketing, pointing out that as
of 1:30 p.m. that day Roger still had failed to call as
promised, and asserting that Respondent interpreted
these events as rejections of Respondent's proposals,
with the result that an impasse had been reached.t' No
response was received to Schuckman's November 20
mailgram. Although Roger had dictated the above-de-
scribed letter on November 20, his secretary had not
gotten around to typing and sending it until November
24. When Schuckman ultimately received it, he sent a
reply, dated November 26, in which he stated:
This letter is in response to yours of November
24, 1980.
Beginning with our letter dated April 14, 1980
and hand delivered to Mr. Robert J. Scott that day,
we have attempted to initiate good faith negotia-
tions with either you or your clients. We have made
written offers to meet and negotiate on the follow-
ing dates:
April 14, 1980
April 18, 1980
May 9, 1980
September 16, 1980
October 8, 1980
November 14, 1980
November 17, 1980
November 19, 1980
November 20, 1980
We feel that prior to November 21, 1980, we
made every conceivable effort to initiate good faith
negotiations and that you have systematically ig-
nored our communications, failed to respond when
and as promised and procrastinated.
As a result, we concluded on November 20,
1980, that an impasse had been reached and on No-
vember 24, 1980, implemented our offer of Novem-
ber 19, 1980.
Since this matter is at impasse, no further negoti-
ations are required.
In addition, we have reasonable and good faith
cause to believe that the majority of M & M's em-
ployees do not wish to be represented by your
union so that we have no obligation to attempt fur-
ther negotiations.
Schuckman testified that he had taken the position set
forth in this letter:
12 Asked to explain his reasons for having reached this latter conclu-
sion. Schuckman testified that he had done so because of the picketing
taken in conjunction with Roger's failure to call back as promised: "My
thought was that he had in fact reached his principals, and that's why
they'd put up the pickets and had not chosen to call me back, had chosen
to communicate with me by putting up pickets."
1475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because-primarily because-I felt that, number
one, I was entitled to some response to my -the
specific offer that I had made, and that was em-
bodied in the 11/19/80 telegram, G.C. Exhibit (n)
as in Nancy.
And second, it was-these negotiations were to
begin not sooner than two weeks after the sending
of the November 24th letter, not sooner than that.
That was the Monday of that week. And so they
were going to be somewhere between two and
three weeks in the future. And the alleged reason
for that in the letter was that that was when it
would be convenient with Mel Ward and that
group to come and negotiate.
But when I tried to contact Mel Ward and that
group, they had referred me to Roger. So when I
went to talk to them I was supposed to talk to
Roger. When I was supposed to talk to Roger, then
I can't talk to him because I'm supposed to wait for
them.
So it was going back and forth. And I really
throught I was getting the run-around.
With respect to the withdrawal of recognition, Mal-
donado testified that primarily two factors had let him to
believe that a majority of the employees no longer sup-
ported the incumbent representative and that, in turn,
those factors had led him to instruct Schuckman to
notify the Union that Respondent was withdrawing rec-
ognition: first, "that some of the apprentices ... had
dropped from the apprenticeship program," and second,
that "a lot of fellows were working for other companies
which were non-union."l s
Analysis
With regard to Respondent's changes in wages, fringe
benefit contributions, and subcontracting restrictions on
November 24, the parties, in their briefs, have argued
that the threshold issue which must be addressed to re-
solve the legality of those changes is whether an impasse
had been reached before they had been implemented. In
the broadest sense, this is accurate. The lawfulness of
changes made in employment terms during negotiations
is usually dependent upon whether an impasse has oc-
curred. Winn-Dixie Stores, Inc., 243 NLRB 972, 974
(1979). Determination of whether an impasse exists, in
turn, is usually dependent upon whether there is a "real-
istic possibility that continuation of discussion ...
would have been fruitful." American Federation of Televi-
sion and Radio Artists; AFL-CIO, Kansas City Local [Taft
Broadcasting Co.] v. N.LR.B., 395 F.2d 622, 628 (D.C.
Cir. 1968). Yet, before the issue of impasse becomes ripe
for resolution, there first must be meaningful negotiations
which can be assessed to determine if continued discus-
sion "would have been fruitful." "Thus, a genuine im-
passe . . . is merely a point at which the parties cease to
negotiate . . ." Hi-Way Billboards Inc., 206 NLRB 22,
A' While Maldonado listed other reason at various points in his testi-
mony and in a pretrial affidavit, it is clear from the above-quoted testimo-
ny that he replied primarily on those two reasons and that the others
were mere afterthoughts.
23 (1973), reversed on other grounds 500 F.2d 181 (5th
Cir. 1974).
In the circumstances presented in this case, it can
hardly be argued with any degree of persuasion, much
less concluded, that meaningful negotiations-"discussion
with an open and fair mind, and a sincere purpose to find
a basis of agreement .... " Globe Cotton Mills v.
N.LR.B., 103 F.2d 91, 94 (5th Cir. 1939)-had occurred.
Responsibility for that failure hardly can be laid at Re-
spondent's doorstep. For it simply cannot be concluded
that Respondent had failed to attempt to bargain about
them. Prior to actual commencement of contract negotia-
tions, an employer seeking to make changes in terms and
conditions of employment is obliged only to give notice
of that desire to its employees' bargaining representative.
Thereafter, "it is incumbent upon a union which has
notice of an employer's proposed change in terms and
conditions of employment to timely request bargaining in
order to pursue its right to bargain on that subject." Citi-
zens National Bank of Willmar, 245 NLRB 389, 389-390
(1979).14 Where an employer has been rebuffed over a
prolonged period in its efforts to diligently and earnestly
seek bargaining sessions, and, at least, demonstrates that
a valid economic reason exists for instituting changes al-
ready submitted to the bargaining representative as pro-
posals, no violation of the Act is committed by imple-
menting those proposals, absent evidence showing that
an unlawful motive existed for having done so. AAA
Motor Lines, Inc., 215 NLRB 793 (1974); cf. Mountaineer
Excavating Co., Inc., 241 NLRB 414 (1979).
Here, at the time that Respondent had implemented
the changes in wage rates, fringe benefit contributions,
and subcontracting restrictions, it had been confronting
the same silence-as a result of the broken promise to
telephone Schuckman during the afternoon of November
19 and of the absence of any other expression, between
that date and the one on which the changes were imple-
mented, of willingness to participate in a negotiating
meeting-that, for the most part, had greeted its over-
tures to bargain during the preceding 7-month period.
Viewed from Respondent's perspective on November 24
there was no objective basis for concluding that further
delay in making these changes would be any more fruit-
ful in generating commencement of negotiations.
In his brief, counsel for the General Counsel asserts
that "neither party aggressively pursued a meeting for
purposes of collective bargaining until early November,
1980." Clearly, that assertion mischaracterizes what had
been occurring from April to November 5. For, as sum-
marized in Schuckman's above-quoted letter of Novem-
ber 26, Respondent had made a number of efforts to initi-
ate negotiations during that 6-1/2-month period. Howev-
er, most of these efforts had been ignored flatly. True,
Schuckman's April 18 letter had been misfiled. But, at no
point, so far as the record discloses, had that been ex-
plained to Schuckman once the letter had been discov-
ered by Bee. Instead, Bee had responded only that
'4 Of course, once negotiations for a collective-bargainng agreement
are sought or have actually commenced and are in progress, with meet-
ings occurring and discussions actually taking place, a different analysis s
applicable. See Winn-Dixie Stores supr
1476
M & M CONTRACTORS
Schuckman's letter had been "untimely" received. More-
over, the misfiling of that single letter hardly explains the
failure to reply to Schuckman's communications of May
9, September 16, and October 8. Against that back-
ground of silence, Schuckman's failure to receive the
promised telephone call, specifying a date for commence-
ment of negotiations, understandably had a ring of deja
vu.
1
It might be argued that inasmuch as Roger's Novem-
ber 24 letter had been received by Srhuckman at a point
in time so proximate to implementation of the changes in
employment terms, this expression of willingness to bar-
gain should suffice to stay Respondent's ability to contin-
ue applying the implemented changes until bargaining
could be conducted. Yet, the letter stated that the
Union's agents would not be "available until the week of
December 8, 1980, for the purpose of meeting . . . with
respect to collective bargaining." Thus, in effect ignoring
its own demand for "an immediate meeting," the Union
was attempting to further postpone commencement of
bargaining for almost a 2-week period from the date of
Roger's letter and for over I month after the November
5 demand that bargaining be commenced immediately-
to a point in time almost 9 months after Respondent had
first sought to conduct negotiations. Consequently, while
Roger's letter had been received at a time proximate to
implementation of the changes, the date that it suggested
for initiating bargaining had not been similarly proxi-
mate.
Much is made of the role played by Schuckman's va-
cation and subsequent almost 3-week period catching up
from it, as well as of his November trial schedule, in
causing delays in meeting by the parties. Yet, it can
hardly be concluded that the former impeded negotia-
tions. In his August 11 letter, Bce had taken the position
that no obligation to bargain separately with Respondent
existed due to the purportedly untimely receipt of
Schuckman's April 18 letter-hardly an invitation to bar-
gain. Moreover, silence had been the response greeting
Schackman's renewed offer to commence negotiations,
made both in the letter replying to Bee's August 11 letter
and in a subsequent letter dated October 8. With respect
to Schuckman's Novembcr trial schedule, it is true that,
not suprisingly, after having sent his October 8 letter,
l* Of course, Roget had not conlacted hi, client on November 19, and,
accordingly, had no meeting date to report to Schuc-kmanl during the
afternoon of that day Yet. Schuckman could hardly have been expected
to have been a-ware itf Ihat fact. All he knes awas that a veil of nonre-
stxonse had once more settled over his efforts ito initiale bargaining.
Moreover, that R. tger did not contact his client until November 20
hardly serves tI excuse hs. failure to attempt to telephone Schuckman on
that date with regard t,o Ihe time at swhich bargaining could commence.
Cerlainly Roger must have had time to d. so. Inasmuch as he had taken
time to dictate a letitr ti Schuckman reciting this information. Even as-
suming arguendo that Rogcr had been unable to make such a call on No-
vember 20 and 21, iertailnis he could have instructed Ward to call
Schuckman for the limited rurpot.e if advising the latter when the first
bargaining meeting .cluld bc citlduc:ed The crucial points here are that
it had been the LUntiki .:i,d ils agenti that had demanded "an immediate
meeting" and. (ince Schckmilan had replied b) suggesting an array of
dates within the next neck for dosing so, that it had been Roger who had
made the promise to, telepl..lc Sch'nu.kman wsith an anss',er concerning
when a oteetlig culd he cindiucted. Surelt . in these circumstances,
blame for the renewed pr-.: rastination of the emplosees' bargaining rep-
resentative can hardly be a.t..>ei agilnst Respondent
Schuckman had not sat waiting for the Conference
Board to pick and choose when, if ever, it would decide,
to dignify his bargaining invitations with a response.
However, on November 14-9 days after the date shown
on Roger's letter and 2 days after the date shown on
Ward's telegram-Schuckman did reply to the demands
for "an immediate meeting." Given tht background here,
that 9-day delay can hardly be viewed as having been
significant. Moreover, there is no evidence that Schuck-
man would not have been available to meet for negotia-
tions on any date during the remainder of November. To
the contrary, it is undisputed that Schuckman had of-
fered to meet on November 20, 21, 22, 24, and 25. How-
ever, when he attempted to contact Roger, as instructed
by Ward, Schuckman's telephone calls were greeted by
the all too familiar silence that had characterized his ear-
lier efforts to initiate negotiations. Consequently, it
hardly can be said that either Schuckman's vacation or
his November trial schedule had any adverse impact on
Respondent's ability to meet to conduct negotiations.
Given the history leading up to the receipt of the No-
vember 24 letter, there were additional reasons for
Schuckman to have been suspicious concerning whether
the Union truly intended to initiate negotiations and for
him to believe that he "was getting the run-around."
From the very beginning, Schuckman had been yo-yo'd
from one agent of the Union to another when he had at-
tempted to initiate negotiations. Thus, in response to his
April 14 letter, he had been told that Delta-Yosemite
was not the proper party for receipt of such notices and
had been instructed by Delta-Yosemite to contact the
Conference Board instead. In Bee's August 11 letter,
Schuckman was instructed to contact Conference
Board's attorney if he had "any further comments in this
matter .... " But in his November 5 letter, the Confer-
ence Board's attorney had instructed Schucknian to con-
tact Ward, an official of Delta-Yosemite. That, of course,
had been the very entity that had led Schuckman to be-
lieve, in its April 16 letter, that it was not involved in the
negotiating process. Then, when Schuckman did contact
Ward, the latter told him to contact Roger instead. But,
during a telephone conversation, the latter, as set forth in
footnote 10, supra, had said that it would be easiest if
Schuckman contacted Ward directly regarding alterna-
tive wage rates. Given this scenario, it is hardly suprising
that Schuckman had become concerned that he was
"getting the run-around" by the Union.
Obviously it is understandable that a party would
desire to have its own attorney conduct negotiations
with the other side, when the latter is represented by
counsel. Yet, so far as the record discloses, it had been
no secret by November that Schuckman was an attorney
and Roger obviously had been aware of the Union's
policy regarding attorneys. These two factors surely pro-
vide some basis either for Roger to have requested that
he personally be contacted by Schuckman or to have
alerted Ward to deal with Schuckman in, at least. arrang-
ing a date for the meeting sought by the latter. Indeed,
Ward is shown on the November 5 letter as having been
sent a carbon copy of it and, thus, presumably was aware
that he had been the person that Roger had instructed
1477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schuckman to contact. Inasmuch as that also was obvi-
ous to Schuckman from his own copy of the letter,
Ward's direction, when Schuckman telephoned him, that
Roger instead be contacted can only have contributed to
Schuckman's belief that he was being given "the run-
around." Moreover, if Schuckman had been expected to
observe the Union's policy of dealing through counsel,
reciprocal respect was hardly shown for Respondent's
desire to have Schuckman act as its bargaining repre-
sentative. So far as the record discloses, Bee made not a
single effort to contact Schuckman upon receipt of the
latter's letters of September 16 and October 8. Instead,
Bee simply ignored those letters, as well as the messages
left as a result of Schuckman's telephone calls, and at-
tempted to speak directly with Maldonado to ascertain if
"I could talk to him about what the real status was."
An additional deficiency in Roger's November 24 sug-
gestion that, in effect, commencement of negotiations be
deferred until the week of December 8 arises from the
nature of Respondent's situation. As set forth above,
after a summer and fall of minimal business activity, Re-
spondent had continued bidding for work on projects.
Ultimately, it had obtained subcontracts for the Brook-
side Condominium and for a project in Fairfield. As
Schuckman explained, the items about which he had
been attempting to negotiate with the Union were ones
that affected Respondent's labor costs, which represent
"almost all" of Respondent's business expenses. The ne-
cessity for a construction industry employer, such as Re-
spondent, to know its labor costs in order to make esti-
mates for bids on projects had been one of the "two as-
pects peculiar to the building trades that Congress appar-
ently thought justified the use of pre-hire agreements
with unions that did not then represent a majority of the
employees .... " N.L.R.B. v. Local Union No. 103, In-
ternational Association of Bridge, Structural and Ornamen-
tal Ironworkers, AFL-CIO, et al. [Higdon Construction
Ca], 434 U.S. 335, 348 (1978). Consequently, further
postponement of commencement of negotiations would,
by virtue of the congressionally recognized nature of the
industry in which Respondent conducted business,
simply have prolonged the uncertainty created in Re-
spondent's bidding as a result of the Union's unwilling-
ness to initiate bargaining.
The changes effected by Respondent were consistent
with the proposals which it had made in its mailgrams
and over the telephone to Roger. It is, of course, accu-
rate that Respondent had not made any proposals before
November. However, as Schuckman explained, no pro-
posals had been made until November because "I didn't
see any point in sending officer [sic] off into the blue,
when . . . nobody was even willing to negotiate with
me." In his brief, the General Counsel characterizes the
November proposals as having been "exploratory, pre-
liminary to the true proposal submission .... " Indeed,
Schuckman, himself, described iris November 14 offer as
having been "a preliminary proposal .... " Neverthe-
less, he testified that his proposals regarding wages,
fringe benefits, and elimination of subcontracting restric-
tions had been serious ones. At no point has any party
argued that Respondent's motivation in having made
these proposals had been insincere or motivated by un-
lawful considerations. True, there had not been any in-
depth discussion of them. Possibly Respondent might
have been willing to abandon or to modify them in some
degree if negotiations had been conducted. However, the
fault for the lack of in-depth discussion and for the ab-
sence of negotiations regarding these proposals lies not
with Respondent. Rather, based on the situation con-
fronting Schuckman on November 24, the Union and its
agents simply had displayed no interest in meeting to ne-
gotiate concerning these matters. Thus, it is the Union,
itself, that was at fault for whatever deficiencies and am-
biguities may have existed in these areas.
Whether or not the Union's conduct rises to the level
of a violation of Section 8(b)(3) of the Act is not an issue
presented by this case. Further, it is not profitable to
speculate regarding whether or not, all along, the
Union's disregard of Schuckman's bargaining requests
had been intended as a vehicle to buy time during which
Respondent could be persuaded or forced into accepting
the terms of the master agreement, without the need for
separate negotiations. Certainly, Roger's description of
what he had been told by his client, as set forth in foot-
note 8, supra, tends to indicate that the Union did not
intend to negotiate a separate collective-bargaining
agreement, differing from the master agreement, with
Respondent.
What is clear is that Respondent has not been shown
to have harbored hostility toward the concept of collec-
tive bargaining nor toward the bargaining representative
of its employees. Over a 7-month period it had made dili-
gent and earnest efforts to initiate negotiations with its
employees' collective-bargaining representative for an
agreement to succeed the one that had expired in June.
Because of the high proportion of its costs that labor
represented and in light of its need to be certain of its
costs in order to bid intelligently for contracts, it had
need to resolve those economic issues about which it had
been attempting to negotiate. Its efforts to do so had
been met with silence and with actions that gave it a rea-
sonable basis for concluding that it was "getting the run-
around." In these circumstances, at the time that it im-
plemented the changes Respondent had an objective
basis for concluding that further delay would not be
fruitful in resolving these issues. The changes that were
made were consistent with the proposals that had been
made to the Union by Respondent. In these circum-
stances I find that Respondent did not violate Section
8(a)(5) and (1) of the Act by making the changes imple-
mented in mid-November. AAA Motor Lines, Inc., supra
If, however, Respondent did not violate the Act in
making the November changes, it surely did so when it
refused to bargain further with the Union and withdrew
recognition from it. At the outset, it is worth noting that,
while Schuckman had included the withdrawal of recog-
nition announcement in his November 26 letter, at no
point did he testify concerning the reasons for having
done so. Thus, he did not corroborate Maldonado's ac-
count of the factors that had led the latter to instruct
Schuckman to notify Roger that recognition was being
withdrawn. When he testified regarding this subject,
Maldonado did not appear to be doing so in a candid
1478
M & M CONTRACTORS
fashion. In contrast to his testimony in other areas, his
hesitant and, at times, inconsistent position left the im-
pression that his decision to withdraw recognition had
been based in pique at the Union's reaction to Respond-
ent's efforts to generate negotiations, rather than on a
genuinely held conviction that there was a lack of em-
ployee support for the incumbent bargaining representa-
tive.
For an employer to lawfully w ithdraw recognition
from an incumbent bargaining representative, its doubt of
that representative's continued majority status must "be
asserted in good faith .... " Clear Pine Mouldings, Inc.
v. N.LR.B., 632 F.2d 721 (9th Cir. 1980). Even if a
union's conduct has rise to the level of a violation of
Section 8(b)(3) of the Act, that unlawful conduct would
not privilege an employer with whom that union is bar-
gaining, to withdraw recognition from it For "the Act
plainly does not contemplate that a refilsal by a union to
bargain at one time operates to absolve an employer
from obeying the mandate of the Act to bargain collec-
tively on any subsequent occasion." Times Publishing
Company, et al., 72 NLRB 676, 683 (1947). Similarly, the
existence of an impasse does not entitle an employer to
withdraw recognition from the bargaining representative
of its employees. International Medication Systems, Ltd.,
253 NLRB 863, fn. 2 (1980). Consequently. while they
serve to permit Respondent to make the changes which
it did and although they might well have supported a
valid unfair labor practices charge. the difficulties caused
by the Union and its agents in commencing negotiations
did not allow Respondent to withdraw recognition from
it as the collective-bargaining representative of Respond-
ent's employees.
In its brief, Respondent contends both that it had a
reasonably based doubt of the Union's continued major-
ity support and that the Union no longer, in fact, en-
joyed the support of a majority of the employees in the
bargaining unit. In making this contention, Respondent
points to two factors: that many employees were work-
ing for nonunion contractors and that many of them had
ceased paying union dues.' 6 However, there is simply no
relationship between these two factors and the conten-
tions made by Respondent. As is true where employees
return to work during a strike, accepting work from a
nonunion contractor, of itself, "may mean no more than
that [they were] forced to [accept] work for financial
reasons .... " Pennco. Inc., 250 NLRB 716, 718 (1980).
Similarly, "[t]here is no necessary correlation between
membership and the number of union supporters since no
one could know how many employees who favor union
bargaining do not become or remain members thereof."
Terrell Machine Company, 173 NLRB 1480, 1481 (1969),
enfd. 427 F.2d 1088 (4th Cir. 1970). Accord: Orion Cor-
poration v. N.L.R.B., 515 F.2d 81, 84 (7th Cir. 1975).
While Maldonado referred to other factors which asser-
t It is worth noting that these reasons advamned in Respondent's brief
do not correspond precisenr with the above-quoted testimony of Maldon-
ado regarding his rcasons foi ha'ing withdrawn recognition For Mal-
donado testified that, at the tilne that he had insitucted Sihucsman to do
so, he had known onl) that a nunibe- iof elinpli).ces were no longer Far-
licipating in the Urnoil ', apprenliceship progralms and that many of the
Union's members were %c rking for nonunion *:,nlractors
tedly supported his instruction to withdraw recognition
from the Union, these appeared to have been advanced
as mere afterthoughts designed to fortify the action
which he had instructed Schuckman to take. According-
ly, they are not entitled to any consideration and, in any
event, do not constitute the types of objective consider-
ations that would support a valid withdrawal of recogni-
tion.
Therefore, I find that, on and after November 26, Re-
spondent did violate Section 8(a)(5) and (1) of the Act
by refusing to bargain with and by withdrawing recogni-
tion from the Union as the collective-bargaining repre-
sentative of its employees.
CONCL.USIONS OF LAW
1. M & M Building and Electrical Contractors, Inc.,
d/b/a M & M Contractors is an employer within the
meaning of Section 2(2) of the Act, engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2?6) and (7) of the Act.
2. Carpenters Local No. 266, United Brotherhood of
Carpenters and Joiners of America, AFI.-CIO. is a labor
organization within the meaning of Section 2(5) of the
Act.
3. A unit appropriate for collective bargaining is:
All full-time and regular part-time employees em-
ployed by M & M Building and Electrical Contrac-
tors, Inc., d/b/a M & M Contractors; excluding
office clerical employees, guards and supervisors as
defined in the Act.
4. At all times material, Carpenters Local No. 266,
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, has been the exclusive collective-bargain-
ing representative of the employees in the above-de-
scribed appropriate unit within the meaning of Section
9(a) of the Act.
5. By refusing to bargain with and by withdrawing
recognition of Carpenters Local No. 266, United Broth-
erhood of Carpenters and Joiners of America, AFL-
CIO, as the collective-bargaining representative of the
employees in the appropriate unit described in Conclu-
sion of Law 3 above, on and after November 26, 1980,
M & M Building and Electrical Contractors, Inc., d/b/a
M & M Contractors violated Section 8(a)(5) and (1) of
the Act.
7. M & M Building and Electrical Contractors, Inc,
d/b/a M & M Contractors has not violated the Act in
any other manner.
THE REMEDY
Having found that M & M Building and Electrical
Contractors, Inc., d/b/a M & M Contractors engaged in
certain unfair labor practices, I shall recommend that it
be ordered to cease and desist therefrom, and that certain
affirmative action be taken to effectuate the policies of
the Act. With regard to the latter, I shall recommend
that M & M Building and Electrical Contractors, Inc.,
d/b/a M & M Contractors be ordered to resume recog-
nizing and bargaining with Carpenters Local No. 266,
1479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, as the representative of its employees in
the appropriate unit described in Conclusion of Law 3
above.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '
The Respondent, M & M Building and Electrical Con-
tractors, Inc., d/b/a M & M Contractors, Stockton, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Carpenters Local No. 266, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, as the exclu-
sive bargaining representative of all employees in the fol-
lowing appropriate bargaining unit:
All full-time and regular par-time employees es-
ployed by M & M Building and Electrical Contrac-
tors, Inc., d/b/a M & M Contractors; excluding
office clerical employees, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering with, re.
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with Carpenters Local No. 266, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, as the ex-
clusive representative of all employees employed in the
above-described appropriate bargaining unit, respecting
rates of pay, wages, hours, or other terms and conditions
of employment, and should any understandings be
reached, embody such understanding in a signed agree-
ment.
(b) Post at its Stockton, California, facility copies of
the attached notice marked "Appendix." ' Copies of said
notice on forms provided by the Regional Director for
Region 32, after being duly signed by its authorized rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered by
any other material.
1" In the event no exceptions are flied as provided by Sec. 102.4 of
the Rules and Regulations of the National Labor Relatios Bard, the
findings, conclusions, and recommended Order herm shll, m provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the oard nd
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
I8 In the event that this Order is enforced by a Judoitne of a Udied
States Court of Appeals, the words in the noiee readlg Psoted by
Order of the National Labor Relations Board" sh rmad "Posted Purse
ant to a Judgment of the United States Court of Appels Enfoeri an
Order of the National Labor Relations Board."
(c) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity
to present evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and we have been ordered to post this notice.
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
agreement which imposes a lawful requirement
that employees become union members.
WE WILL NOT refuse to recognize and bargain
collectively with Carpenters Local No. 266, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, as the exclusive bargaining representa-
tive of all employees in the following appropriate
bargaining unit:
All full-time and regular part-time employees em-
ployed by M & M Building and Electrical Con-
tractors, Inc., d/b/a M & M Contractors; exclud-
ing office clerical employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT in any like or related manner in-
terfere with any of your rights set forth above
·which are guaranteed by the National Labor Rela-
tions Act.
WE WILL, upon request, recognize and bargain
collectively with Carpenters Local No. 266, United
Brotherhood of Carpenters and Joiners of America,
AFI-CIO, as the exclusive bargaining representative
of all employees in the above-described bargaining
unit, respecting rates of pay, wages, hours of em-
ployment and other terms and conditions of em-
ployment, and, if any understandings be reached,
embody them in a signed contract.
M & M BUILDING AND ELECTRICAL CON-
TRACTORS, INC., D/B/A M & M CONTRAC-
TORS
1480