Mk-Ferguson Co.

National Labor Relations Board - Board Decisions

Sep 27, 1988

296 N.L.R.B. 776 (N.L.R.B. 1988)

776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
MK-Ferguson Company and United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada. Case 11-CA-12576
September 27, 1988
DECISION AND ORDER
William G. Jeffery, Esq. (Dies, Morrison & Rinker), of Se-
attle, Washington , and Charles P. Roberts, III, Esq.
(Haynsworth, Baldwin, Miles, Johnson, Greaves & Ed-
wards), of Greensboro , North Carolina, for the Re-
spondent.
Ellen O. Boardman and Robert Matisoff, Esgs (O'Don-
oghue & O'Donoghue), of Washington , D.C., for the
Charging Party.
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 12, 1988 , Administrative Law
Judge Hutton S . Brandon issued the attached deci-
sion.
The General Counsel and Charging Party filed
exceptions and supporting briefs, and the Respond-
ent filed a brief in answer to the exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board 's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect . Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd.
188 F.2d 362 (3d Cir . 1951) We have carefully examined the record and
find no basis for reversing the findings
2 We adopt the judge 's conclusion that the Respondent did not violate
Sec. 8(a)(5) and ( 1) by excluding the inspector/tester and sketcher posi-
tions from the bargaining unit In this regard , we find that although the
Respondent and the Union at the May 22, 1987 meeting agreed to trans-
fer the B F Shaw employees to the Respondent 's project , there is insuf-
ficient objective evidence to establish that the parties reached a meeting
of the minds as to whether the employees in the above positions would
be "rolled over" within their Shaw classifications as unit jobs for the
project In so finding , we specifically do not rely on the judge 's specula-
tion concerning the likelihood of whether the Respondent's representa-
tives would agree to include these positions in the unit . Whether a meet-
ing of the minds was reached is determined not by the parties ' subjective
inclinations , but by their intent as objectively manifested in what they
said to each other On the basis of that objective standard , we find that
the General Counsel has not shown by preponderance of the evidence
that the parties agreed to include the disputed classifications in the unit
Further, we find it unnecessary to reach the issues of whether the parties
reached a separate oral 8(f) agreement on May 22 or modified the project
agreement , and whether the May 22 agreement was consistent with the
project agreement.
In adopting the judge 's finding that the Union had not achieved status
under Sec . 9(a) as the majority representative of the B . F. Shaw employ-
ees, Member Devaney notes that no exceptions were filed to the judge's
findings on this point
George Carson , II, Esq., for the General Counsel.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON , Administrative Law Judge.
This case was tried in Aiken , South Carolina, August 23-
25, 1988 . The charge was filed by United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada (UA or
the Union), on December 22, 1987 .1 The complaint was
issued February 29, 1988 , alleging that MK-Ferguson
Company (Respondent or Company ) violated the good-
faith bargaining requirements of Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act) by unilat-
erally, without consultation with the Union excluding
..all inspectors and sketchers (engineer helpers)" from the
agreed-upon collective-bargaining unit . The critical issue
is whether Respondent agreed , or was otherwise legally
bound , to recognize the Union as bargaining representa-
tive of the inspectors and sketchers when Respondent
agreed with the Union to hire employees of the Benja-
min F . Shaw Company (Shaw) following assumption by
Respondent of the work on the Savannah River Project
previously performed by Shaw.
On the entire record2 including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel , the Union , and Re-
spondent , I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a construction company with a jobsite
located at the Savannah River Project near Aiken, South
Carolina, where it is engaged in construction work.
During the 12 months preceding issuance of the com-
plaint Respondent received at its construction site in
South Carolina goods and raw materials valued in excess
of $50,000 directly from points outside the State of South
Carolina . On these facts which are admitted by Respond-
ent the complaint alleges, and I find , that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The complaint also
alleges, Respondent admits, and I further find that the
Union is a labor organization within the meaning of the
Act.
' All dates are in 1987 unless otherwise indicated.
2 Respondent's unopposed motion to correct the transcript, dated Oc-
tober 14, 1988, is granted and received in evidence as R Exh 17.
296 NLRB No. 96
MK-FERGUSON CO.
A. Background
The Savannah River Plant is a facility engaged in the
production of nuclear components of the country's de-
fense arsenal . It is located on a reservationconsisting of
approximately 200,000 acres and is operated under the
authority and supervision of the U.S. Department of
Energy. However, the E. I. DuPont Company has been
charged with the actual operation of the facility since the
facility was created in 1950. DuPont employs a number
of employees in the basic construction trades. While
DuPont has been the prime contractor at the facility the
development and maintenance of the facility has been
continuous over the years requiring constant use of sub-
contractors for construction activities employing thou-
sands of employees in numerous crafts, trades, and skills.
This case involves essentially two of these subcontrac-
tors, Respondent and Shaw.
Shaw was a subcontractor on the facility during its ini-
tial construction during the early 1950s. Shaw served as
the mechanical subcontractor responsible for planning,
building, and testing of the complex piping systems nec-
essary for the operation of the nuclear facility. Shaw em-
ployed employees skilled in the plumbing and pipefitting
craft, and since the beginning of its work it had been sig-
natory to successive collective-bargaining agreements
with the Union covering employees engaged in work
within the Union's trade jurisdiction. The last collective-
bargaining agreement between Shaw and the Union was
effective from May 1, 1984, until April 30, 1987, and was
by mutual agreement extended through September 1987.
Although the bargaining agreement was executed by the
Union, Local 150 of the Union supplied the employees
for Shaw's work through a referral system referring em-
ployees from among both its own membership as well as
other locals and sources. It is undisputed that under its
scheme of operation Shaw utilized employees in two
classifications which provided the basis for the contro-
versy in this case : (1) sketchers and (2) inspectors and
testers, hereafter inspectors/testers.
In September 1987, Shaw used about 54 sketchers in a
total work force of about 838 employees at the Savannah
River Project (SRP). Essentially they were used to draw
or draft pipe systems to be fabricated and constructed by
field personnel experienced in the plumbing and pipefit-
ting craft. In addition sketchers under Shaw performed a
"take-off" function, i.e., preparation of a parts and mate-
rials list from the drawings necessary for the completion
of the particular job. It is clear that many of the sketch-
ers came from the ranks of pipefitters and possessed the
basic plumbing-pipefitting skills. Further, sketching is
and has been a subject for training within Local 150's ap-
prenticeship program.
Initially, although several of the sketchers were mem-
bers of the Union, they were salaried and were not rep-
resented by the Union. Ira Logan, a former supervisor of
Shaw who retired in 1979, testified that in the late 1960s
the sketchers became disgruntled because their salaries
were being exceeded by the hourly rated craft employees
and because being salaried they risked layoffs in slack
work periods without an opportunity to be transferred
into field work in the craft. A meeting was conducted
among the sketchers by Shaw's job superintendent, Tom
777
Rhiner. According to Logan, after discussion at the
meeting the "concerns of everybody in the meeting was
that [the sketchers] would go Union or go to the hourly
basis." It is undisputed that thereafter the sketchers
became hourly paid and were represented by the Union.
Shaw in September employed about 36 inspectors/-
testers (who had pipefitting skills, experience or knowl-
edge) in a testing and inspecting department organized
by DuPont and operated under DuPont's supervision.
Since this department was operated under DuPont it in-
cluded inspectors/testers employed by other contractors
in various other construction crafts. It was the function
of Shaw's inspectors/testers to inspect and test by nonde-
structive means pipe and material installed by pipefitters.
It is undisputed that the Shaw inspectors/testers were
traditionally included in the pipefitter bargaining unit, al-
though, like the sketchers, they were not specifically re-
ferred to in the collective-bargaining agreement.
Respondents3 was relatively a newcomer to the SRP
having obtained a contract for projects in connection
with the SRP's Nava Fuels Section and Defense Waste
Section in 1983. Respondent was to employ pipefitters in
these projects as well as certain other crafts, and negoti-
ated with the Building and Construction Trades Depart-
ment of the AFL-CIO for a project agreement covering
its work. Various representatives of the building trades
unions took part in these negotiations including Robert
W. Baynes, an International representative of the Union
herein. The agreement was executed on July 19, 1983,
and was effective for the duration of the project. It cov-
ered various crafts employed by Respondent in "the rec-
ognized historical and traditional craft jurisdiction of the
signatory Unions," including the UA, but the signatory
unions specifically disclaimed jurisdiction over, inter alia,
"Inspectors" and "professional engineers and their help-
ers." The agreement thus described a single unit made up
of several crafts with employment conditions universal to
all, and wages set for all on the basis of a periodic
survey scheme.
The project agreement was modified in 1985 to note
the change of name of Respondent and to extend the
agreement with Respondent from the Nuclear Fuels and
Defense Waste projects to the entire SRP. This agree-
ment as extended was effective at all times material to
the instant case.
Critical to the instant case is Respondent's employment
prior to September 1987, of employees in the classifica-
tions of inspectors and engineer helpers, both of which
were not covered in Respondent's project agreement.
Respondent's inspectors were cross-trained to inspect the
work and product of more than one craft. There is an
ongoing certification process of inspectors, and training
of inspectors has been more formalized with more formal
instruction in keeping with Respondent's quality assur-
ance system. Respondent's inspectors have been treated
as company staff and subject to transfers to projects
other than SRP.
8 At the time of its initial contract on the project Respondent was
known as Morrison-Knudson Co, Inc.
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although it is not entirely clear whether they were
specifically designated as either engineer helpers, sketch-
ers, or technicians, Respondent employed several em-
ployees in positions claimed by the Union to be the
equivalent of the sketcher-pipe technicians employed by
Shaw. Contrary to Shaw 's use of sketchers, however,
Respondent used these people more in design and engi-
neering functions with substantially less drafting or
sketching.
B. The Replacement of Shaw by Respondent
DuPont had historically operated the SRP utilizing a
number of subcontractors , but in late 1986 DuPont was
ordered by DOE to replace the fee contracts with an eye
toward establishing a general and mechanical contractor
for all future site construction work. Accordingly, the
Shaw contract was put out for bid in early June 1987. A
number of contractors submitted bids but ultimately the
selection process dwindled down to four final bidders,
one of whom was Respondent. Shaw bid the contract
through Shaw's parent corporation , Blount Construction
Company.
In the process of soliciting bids DuPont made clear
that it wanted testing and inspection done by nonmanual
(nonbargaining unit) employees, and requested that bid-
ders relate how inspection would be treated if they were
successful. In addition , DuPont sought assurances from
the bidders regarding their ability to maintain a rigid Nu-
clear Quality Assurance I program (NQA I). Finally,
DuPont, seeking a smooth transition of work to the suc-
cessful bidder , requested that the bidders relate how they
would handle the maintenance of the work force to ac-
complish a smooth transition of work and to avoid the
possible delays and expense attendant to obtaining new
security clearances for any new work force.
It was Respondent's effort to respond to DuPont's last
concern noted above that provides the basis for the argu-
ments of the General Counsel and the Union regarding
the violations of the Act attributed to Respondent.
C. The May 22 Meeting Between Representatives of
Respondent and the Union
Uncontroverted testimony reveals that around May 9
or 10, Respondent's then manager of industrial relations,
Bob Byrnes, telephoned Baynes of the Union concerning
the bidding at SRP and sought a meeting with Baynes to
discuss the transition of workers if Respondent was suc-
cessful on its bid to be the general and mechanical con-
tractor . Baynes testified he "believed " Byrnes asked for a
"rollover" of Shaw employees. A meeting was arranged
for May 22.
In the meantime Byrnes also arranged to meet with
Joe Maloney of the building trades department to discuss
application of Respondent 's project agreement to the
work it was bidding upon . A meeting was arranged for
May 20, and Byrnes, along with Respondent 's then di-
rector of industrial relations, Robert Hokaj, and Re-
spondent 's Vice President William Hughes, met with
Maloney as scheduled . During this meeting it was agreed
that Respondent's project agreement with the building
trades department would apply to the work to be award-
ed if Respondent was successful in its bid.
Byrnes and Hokaj thereafter met with Baynes in the
latter's office in Washington, D.C. on May 22. The par-
ties are in agreement that Byrnes reported to Baynes that
Respondent 's project agreement would be applicable if
Respondent was the successful bidder on the SRP.
Baynes agreed. The parties differ with respect to wheth-
er Byrnes and Baynes agreed to a complete "rollover"
of Shaw employees. Baynes' testified he pointed out that
he wanted a complete rollover so that Respondent
would not "pick and choose" employees to retain. Ac-
cording to Baynes, Byrnes agreed.
Byrnes testified that he explained to Baynes the need
for an orderly turnover if Respondent was the successful
bidder and he wanted to assure DuPont in an oral pres-
entation in connection with the bid that Respondent had
discussed the turnover with the Union and that an order-
ly transition could be accomplished . Byrnes denied using
the word "rollover" in the meeting with Baynes but ac-
knowledged that Baynes used it and while he would not
admit to agreement with a "complete rollover" he testi-
fied there was agreement that Respondent would hire all
of Shaw's employees . Hokaj generally supported Byrnes'
testimony.
Although Byrnes , Baynes, and Hokaj did discuss job
superintendents being outside the scope of the agreement
and hence the bargaining unit, there was no dispute that
the parties did not discuss inspectors/testers, sketchers,
pipe technicians , or any other classifications.
D. Respondent 's Successful Bid and the Transition
from Shaw
In early June Respondent made its oral presentation to
DuPont in support of its bid . Part of that presentation in-
cluded a response to a previously posed question of
DuPont regarding labor relations . The question and Re-
spondent 's answer was as follows:
Labor Relations
How do you propose to follow the practice of
using non-manual personnel , rather than foreman,
for sketching and material take-off?
Apply scope of MK-Ferguson project labor
agreement.
Craft labor performing sketching and material
take off are not covered by the scope.
Non-manual personnel will perform these func-
tions as per our current practice.
MK-Ferguson will hire craft labor as covered by
the project agreement on October 1, 1987.
Anticipate objections by the Local United Asso-
ciation and prepare for resolution during the transi-
tion period.
On July 23 or 24 Respondent was advised that its bid
had been accepted. On July 24 Byrnes called Baynes and
advised him of this fact , and told him that Respondent
* A "rollover" was defined by the witnesses as the hiring by a success-
ful bidder of the old contractor's employees within the same classification
in which they had previously been employed
MK-FERGUSON CO. 779
would employ all the Shaw employees . However,
Byrnes further told Baynes that Respondent would roll
the Shaw people who were performing sketching and in-
spection -testing duties back into the craft as fitters or
welders and would use nonmanual employees to do the
work they had been engaged in. Baynes testified that he
immediately disputed this position saying it was contrary
to the agreement for a complete rollover reached on
May 22 . According to Byrnes' testimony , Baynes' re-
sponse was more tempered with Baynes only expressing
uncertainty as to the acceptability of this disposition of
these two classifications.
There followed an exchange of correspondence. The
Union in a letter to Respondent dated August 20 protest-
ed Respondent 's intended disposition of the two disputed
classifications. The letter signed by Marvin J. Boede, the
Union's general president , but drafted by Baynes and the
Union's attorneys stated:
When the United Association informally agreed to a
"rollover" of the United Association members at
the project from B . F. Shaw to MK-Ferguson, we
did so on the express assumption that no United As-
sociation jobs would be lost in the transition. The
company's assurances that those employees from
the sketching and T and I Departments will be reas-
signed to other positions is not satisfactory, since
you are still talking about the loss of nearly ninety
traditional United Association positions at the
project.
Respondent replied by letter from Byrnes dated Sep-
tember 1 in which Respondent took the position that its
project agreement with the building trades department to
which the Union was a party controlled the situation and
was applicable to the pipefitters hired by Respondent on
the SRP . The letter pointed out that it had been Re-
spondent 's practice on the SRP over the preceding 4
years, as well as on other projects , to employ nonbar-
gaining unit personnel to perform field engineering tasks
like sketching and quality control functions and it intend-
ed to continue this practice.
No agreement was reached between the parties on the
disputed classifications and on September 28 Respondent
assumed its position as the general and mechanical con-
tractor on the SRP . In doing so it retained in its employ-
ee complement in excess of 800 employees in various
crafts, including 25 pipefitters, it already had working at
SRP, and hired all the employees previously working for
Shaw who desired to continue working at the site.5 Al-
though it hired all Shaw 's craft employees without appli-
cation , applications were required for those sketchers
and inspectors/testers who rejected a return to manual
work in the craft , and sought to continue with Respond-
ent in work of the type they had been performing with
Shaw. These applicants were hired by Respondent as
pipe technicians or engineer helpers, in the case of
s More specifically , from Respondent 's figures which are not disputed
by the General Counsel or Charging Party Respondent hired and added
805 Shaw employees including 36 sketchers and 26 inspectors /testers to
its complement of 849 employees already covered by the project agree-
ment
sketchers , and quality control inspectors , in the case of
the inspectors/testers.
E. Arguments of the Parties
Counsel for the General Counsel argues that Respond-
ent was a legal successor to Shaw in a unit of pipefitter
journeymen and apprentices "including inspectors and
sketchers (engineer helpers)" the unit alleged in the com-
plaint herein . In essence the General Counsel and the
Union contend that Shaw had recognized the Union as
the 9(a)6 representative of its employees in the unit and
that Respondent , as successor to Shaw, upon its determi-
nation to hire all employees of Shaw was obligated to
recognize and bargain with the Union as the 9(a) repre-
sentative of unit employees . When Respondent unilateral-
ly determined to change the scope of the unit by exclud-
ing the sketchers and inspectors/testers, from the unit
and by thereafter admittedly changing their wages and
fringe benefits , it breached its bargaining obligations
under Section 8 (a)(5) of the Act, the argument goes. See
Carolina Telephone & Telegraph Co., 258 NLRB 1387
(1981); Arizona Electric Power, 250 NLRB 1132 (1980).
See also NLRB v. Katz, 369 U.S. 736 (1962). That the
Union was in fact a majority representative of Shaw's
unit employees was demonstrated , according to Counsel
for the General Counsel, by the uncontroverted fact that
all the 838 employees of Shaw , based on the testimony of
A. Frank Williams, business manager of Local 150, and
union records , were members of the Union during the
month of September.
Even if there was no 9 (a) relationship between Shaw
and the Union, the General Counsel 's argument contin-
ues, Respondent by its conduct in May recognized the
Union as the 9(a) representative of the unit employees,
and having extended such recognition to the Union Re-
spondent was thereafter not free to withdraw it or unilat-
erally change the terms and conditions of unit employ-
ees. Knowing that it would hire all of Shaw's employees
Respondent, as successor to Shaw, was required to con-
sult with their bargaining agent before setting the initial
terms of their employment . See Denham Co., 206 NLRB
659 (1973). Noting that Respondent relies upon the
project agreement to justify its actions counsel for the
General Counsel claims that Respondent's letter to the
Union dated September 1 did not "ultimately rely upon
the contract claim" and instead made the argument that
Respondent "traditionally" employed nonunit personnel
for sketching and quality control functions such as in-
specting . Thus, the counsel for the General Counsel and
the Union reject the proposition that the case simply in-
volves a matter of contract interpretation.
Finally, the General Counsel and the Union argue al-
ternatively that even if the relationship between Re-
spondent and the Union is governed by Section 8(f)7 of
6 The reference is to Sec. 9(a) of the Act which accords exclusive rep-
resentative status to a labor organization "designated or selected for the
purposes of collective bargaining by a majority of the employees in a unit
appropriate for such purposes "
r Sec 8(f) of the Act provides, inter alia, that it is not an unfair labor
practice under the Act for an employer engaged "primarily in the build-
Continued
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Act rather than Section 9(a), Respondent still must
be found to have violated Section 8 (a)(5) and (1) of the
Act by its unilateral action . The May 22 agreement on a
"complete rollover" according to the General Counsel
would constitute a valid and enforceable 8(f) agreement
even though it was oral . Respondent breached this valid
agreement which was executory in nature and which
could not have expired prior to its provisions having
been carried out. In regard to this latter point the Gener-
al Counsel relies upon the holding in John Deklewa &
Sons, 282 NLRB 1375 (1987), that, "when parties enter
into an 8(f) agreement they will be required . . . to
comply with that agreement."
Briefly stated Respondent 's arguments are that the
Union never enjoyed 9(a) status at Shaw and therefore
there was no presumption of continuing majority status
when Respondent employed Shaw's former employees,
and the principles of successorship do not apply. Re-
spondent further contends that no voluntary recognition
and 9(a) relationship resulted from the discussions be-
tween the parties on May 22 because it had not hired
any employees at the time and had not even been award-
ed the contract by DuPont. Assuming Shaw had a 9(a)
relationship with the Union Respondent did not succeed
to that relationship because it was not shown that Re-
spondent succeeded to the Shaw bargaining unit in light
of Respondent 's recognition of an existing multicraft bar-
gaining unit . But even assuming the appropriateness of
the unit contended by the Union, Respondent claims
there was no real continuity between Respondent and
Shaw so as to make the former the successor of the
latter . In any event, Respondent asserts the Union
waived any claim to representation of Shaw sketchers
and inspectors/testers by agreeing to a project agreement
under which these classifications were excluded. Finally,
with respect to the 8(f) argument of the General Counsel
and the Union , Respondent contends that Respondent al-
ready was party to an 8 (f) agreement covering the con-
templated work and that agreement which excluded in-
spectors and sketchers (engineer helpers) could not be
changed since by its terms it could be modified only by
mutual consent and by being reduced to writing and
signed.
On its facts the instant case appears to be an extremely
unique one, but one not beyond the application of estab-
lished Board law . First it is readily apparent that the em-
ployers involved herein , Shaw and Respondent , are en-
gaged in the building and construction industry. Indeed,
as already noted the complaint describes Respondent as a
construction company engaged in construction work.
Normally, one would expect that its contractual agree-
ments with a labor organization would be negotiated and
governed by the provisions of Section 8(f) and that body
of Board law set forth in Deklewa, supra, as clarified and
explained in subsequent Board cases including Brannan
Sand & Gravel Co., 289 NLRB 977 (1988). However, the
instant case occurs under unique circumstances, and in
mg and construction industry " to make a bargaining agreement with a
union whose majority status "has not been established under the provi-
sions of Sec . 9 of the Act," i.e., voluntary recognition based on a show-
ing of majority support or certification of the union by the Board after a
Board -conducted election.
light of the arguments of the parties requires analysis of
the respondent -union relationship under Section 9(a) as
well.
It is initially clear, and I conclude, that the Union did
not achieve 9(a) status in the representation of the Shaw
unit employees . In Deklewa, supra, the Board, overruling
R. J. Smith Construction Co., 191 NLRB 693 (1971), enf.
denied sub nom . Operating Engineers Local 150 v. NLRB,
480 F.2d 1186 (D.C. Cir. 1973), abandoned the conver-
sion doctrine which held that a collective-bargaining
relationship/agreement permitted under Section 8(f)
could convert into one cognizable under Section 9(a) on
the basis of a showing that during a relevant period the
Union enjoyed the support of a majority of the employ-
er's employees in an appropriate unit . Deklewa, supra at
1377, went on to modify the unit scope rules in 8(f) cases
and adopted the following principles in such cases:
(1) [A] collective-bargaining agreement permitted
by Section 8(f) shall be enforceable through the
mechanisms of Section 8(a)(5) and Section 8(b)(3);
(2) such agreements will not bar the processing of
valid petitions filed pursuant to Section 9(c) and
Section 9(e); (3) in processing such petitions , the ap-
propriate unit normally will be the single employ-
er's employees covered by the agreement ; and (4)
upon expiration of such agreements , the signatory
union will enjoy no presumption of majority status,
and either party may repudiate the 8 (f) bargaining
relationship.
The Board went on to hold in Deklewa that in light of
the legislative history and the traditional prevailing prac-
tice in the construction industry it would require the
party claiming the existence of a 9(a) relationship to
prove it through either a Board-conducted representation
election or a union 's express demand for, and an employ-
er's voluntary grant of, recognition based on a showing
of support for the Union among a majority of the em-
ployees in an appropriate unit . These points were reaf-
firmed and strictly applied in American Thoro-Clean,
Ltd., 283 NLRB 1107 (1987), and Meekins, Inc., 290
NLRB 126 (1988). And in Precision Striping, 284 NLRB
1110 (1987), the Board pointed out that an employer poll
in certain circumstances prior to initial recognition, would
suffice to create a Section 9 construction industry bar-
gaining relationship.
In the more recent Board decision in Brannan Sand &
Gravel Ca, supra, the Board rejected the argument that a
9(a) relationship in the construction industry could be es-
tablished by proving that the collective-bargaining rela-
tionship was initiated before the enactment of Section
8(f). Thus, no presumption of a union 's majority status in
the construction industry attaches by virtue of a long
and continuous bargaining relationship entered into
before the enactment of Section 8(f).
Considered in light of the foregoing principles, it is
evident that the Union did not enjoy a 9(a) collective-
bargaining relationship with Shaw, notwithstanding its
long contractual relationship with Shaw in the unit.
There was absolutely no evidence presented by the Gen-
eral Counsel that the relationship was based upon a
MK-FERGUSON CO.
Board-conducted election or voluntary recognition based
upon a Union demand and showing of support for the
Union among a majority of Shaw 's unit employees.
The fact that the great majority if not all of the unit
employees were shown to be members of the Union and
on whose behalf Shaw made monthly deductions for
union pension fund contributions does not satisfy the re-
quirement for establishing 9(a) status set out in Deklewa.
In McLean County Roofing, 290 NLRB 685 (1988), rely-
ing on Deklewa , the Board reversed an administrative
law judge's conclusions that a 9(a) relationship between
an employer and a union in the construction industry
was established as a result of a permanent and stable
work force made up of employees the majority of whom
financially supported the union with their dues and for
whom the employer made regular dues and pension de-
ductions.
I find no merit to the argument of the Union that the
testimony of Logan establishes voluntary recognition of
the Union as representative of the sketchers and that im-
plicit in such recognition is Shaw 's acknowledgment of
the majority status of the Union in the overall unit. First
in this regard , I find Logan 's testimony insufficient to es-
tablish a valid polling of the sketchers reflecting their
desire for union representation. His vague recollection,
understandable in light of the lapse of approximately 20
years, indicates only a consensus revealed through some
means which Logan could not specifically recall. No
valid polling under circumstances contemplated in Preci-
sion Striping was shown . Moreover , Shaw's willingness
to include the sketchers in the overall unit adds nothing
to its initial willingness to execute a bargaining agree-
ment with the Union which would satisfy the burden set
out in Deklewa to establish a 9(a) relationship . In short
there was no Board -conducted election or voluntary rec-
ognition in the overall unit based on a showing of major-
ity support in that unit . Here, unlike the situations in San
Clemente Publishing Corp., 167 NLRB 6 (1967), enfd. 408
F.2d 367 (9th Cir . 1969), and Brown & Connolly, 237
NLRB 271 (1978), enfd. 593 F.2d 1373 (1st Cir. 1979),
cited in the Union 's brief, there were no valid polls in
the overall unit or a "convincing demonstration of sup-
port" by employees wearing union buttons accompany-
ing the union representative to the employer president's
office.
The General Counsel argues that at the time of the
May 22 meeting the "conversion doctrine" was still the
law with respect to pre-1959 bargaining relationships
since the Board in Deklewa did not address such relation-
ships and did not do so until Brannan Sand & Gravel,
supra . The Union was therefore the 9(a) representative of
Shaw employees to whom Respondent succeeded as a
result of "conversion." I find no merit to this argument
for while pre-1959 relationships were not specifically ad-
dressed in Deklewa no exceptions to rejection of the con-
version doctrine were noted . Moreover, during 1987 the
conversion doctrine as applied to pre-1959 relationships
was under attack . The Brannan case was pending at the
time of the Deklewa decision and involved a factually
similar situation long predating the May meeting of the
parties herein . In light of Deklewa there would be no
reason for either party at the time to believe that a 9(a)
781
relationship between Shaw and the Union had come
about as a result of "conversion ." Rejection of the con-
version doctrine by the Board in Brannan was universal
and retroactive to all pre-1959 bargaining relationships in
the building and construction industry . If this were not
so then all pre - 1959 relationships in that industry would
have been converted to 9(a) relationships before Brannan
on the basis of "existing law," including the employer in
Brannan . Clearly, that was not the result or the Board's
intent in Brannan.
Obviously, a 9(a) relationship can be established be-
tween an employer and a union engaged in the construc-
tion industry as the General Counsel argues, but the
manner for doing so is clearly set forth in Deklewa which
allows no exceptions . The General Counsel argues that
the Board 's general statement regarding establishment of
a 9(a) relationship in the construction industry in Bran-
nan was not exhaustive or exclusive . This was demon-
strated , the argument goes, by the Board's notation that
its ruling in Brannan was not inconsistent with a prior
Board ruling in Carmichael Construction Co., 258 NLRB
226 fn. 1 (1981), enfd. 728 F.2d 1137 (8th Cir. 1984),
where an employer in the construction industry was
found to have specifically recognized the majority status
of the union and thereby granted it 9(a) status . However,
Carmichael is clearly distinguishable on its facts from the
instant case for in that case the employer admitted that
the recognized union enjoyed majority status . There was
no such admission by Respondent here nor was there
such an admission shown by Shaw.
There is an additional reason why Respondent may
not be regarded as the legal successor to Shaw so as to
make it bound by any extension of recognition by Shaw
to the Union in the pipefitters' unit . Respondent was not
legally obligated to adopt the Shaw-Union bargaining
agreement . NLRB v. Burns Security Services, 406 U.S. 272
(1972). And it is clear, and no one contends otherwise,
that Respondent did not specifically adopt the Shaw-
Union contract. Quite the opposite , the Union and Re-
spondent agreed that Respondent 's project agreement
would control their relationship . That agreement cov-
ered a broad multicraft unit of which the plumbing and
pipefitter craft was only a smaller part .8 Thus, notwith-
standing the fact that Respondent hired Shaw's unit em-
ployees and in spite of the assumption of work formerly
done by Shaw at essentially the same location, I con-
clude Respondent was not the legal successor to Shaw
bound to recognize the Union as the representative of its
employees . In short, although Respondent might other-
wise meet the traditional criteria for a successor as out-
lined in Aircraft Magnesium , 265 NLRB 1344 (1982),9
cited in the General Counsel's brief, except for its failure
to take physical or financial assets from Shaw the unique
factual situation here precludes that application of the
8 Based on Respondent 's undisputed figures the former employees of
Shaw hired by Respondent when it assumed Shaw 's work on September
28 were less than the number on Respondent's payroll in the multicraft
project agreement.
8 These criteria are similarities in (1) business operations; (2) plant; (3)
work force , (4) jobs and working conditions, (5) supervisors; (6) machin-
ery and equipment and methods of production , and (7) product or serv-
ice. See also Fall River Dyeing Corp. Y. NLRB, 482 U S 27 (1987)
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
traditional criteria by virtue of absorption of the Shaw
unit into Respondent 's multicraft unit and the Union's ac-
knowledgement that the project agreement and its multi-
craft unit would control the relationship with Respond-
ent.10 Cf. Anheuser-Busch, Inc., 246 NLRB 29 (1979).
The unit of Respondent 's employees alleged in the com-
plaint herein limited to the former employees of Shaw is
thus inappropriate.
In considering the contentions of the General Counsel
and the Union that 9(a) recognition and status was ac-
corded the Union by Respondent in the May 22 meeting
it is initially apparent that at that time Respondent em-
ployed no Shaw unit employees . Indeed , it had not even
been awarded work for which the former Shaw employ-
ees would be utilized , and there was no way of being as-
sured that it would receive the work. I am mindful of
Board law cited by the General Counsel that a successor
employer is obligated to consult with the bargaining rep-
resentative of its predecessor 's unit employees concern-
ing the initial terms of their employment at the point the
successor manifests an intention to retain all or a majori-
ty of the unit employees." However, as already noted
the instant case does not present a normal successorship
situation . Notable distinctions here include the fact that
any initial terms of employment were already met by the
project agreement to which the Union was a party and
the fact that while Respondent on May 22 intended to
hire Shaw 's employees if it was the successful bidder,
there was no way of knowing on May 22 that it would
be the successful bidder. Under these circumstances, it is
difficult to perceive how the May 22 meeting can be re-
garded as having produced anything other than an 8(f)
prehire agreement which the Third Circuit Court of Ap-
peals in enforcing the Board 's decision in Deklewa, supra
at 773, defined as "a contract agreed to by an employer
and a union before the workers to be covered by the con-
tract have been hired."
There is no showing in this record that Respondent
through Byrnes by conduct or statement acknowledged
that the Union was the representative of a majority of
Shaw 's employees . Clearly, there was no specific
demand for recognition as majority representative made
by Baynes to Respondent at the May 22 meeting or
before . Further, there was no offer to prove, or an at-
tempt to prove, the Union' s majority status by Baynes.
Respondent 's conduct and the Union's conduct was in no
way inconsistent with, or different from , a normal pre-
1° Art. VIII of Respondent's project agreement provides that it "shall
in every instance apply to and control construction at the site and take
precedence over provisions of local or national agreements which may
conflict with the terms of this Agreement , except as provided in Art
IV " The exceptions referred to in art IV were concerned with the ap-
plicat ion of the National Tank Manufacturers Agreement, the Stack
Agreement , and the Cooling Tower Agreement , none of which have ap-
plication in the instant case The same article also provides that the
agreement "represents the complete understanding of the parties , and any
EMPLOYERS and their Subcontractors at any tier shall not be required
to sign any other agreement with the UNIONS or any other union inso-
far as construction work on this project is concerned "
i i The Supreme Court recognized this possibility in Burns, supra,
saying that where "it is perfectly clear that the new employer plans to
retain all of the employees in the unit . it will be appropriate to have
him initially consult with the employees ' bargaining representative before
he fixes terms " 406 U . S at 295
hire recognition agreement under the principles of
Deklewa and an agreement to apply the terms of a con-
tract to which the Union and Respondent were already
parties if Respondent became the general and mechanical
contractor. Further, contrary to the assertion in the Gen-
eral Counsel's brief that "Byrnes approached the UA as
the employees' 9(a) representative," there was nothing in
Byrnes' "approach" or conduct at the May 22 meeting
inconsistent with simple acknowledgement that the
Union was the 8(f) contractual representative of Shaw's
employees.
Considering all the foregoing , I find the General
Counsel and Union have failed to establish a 9(a) rela-
tionship between Shaw and the Union to which Re-
spondent succeeded . And, as Respondent argues, the
Union could not acquire greater status with a successor
than it had with the predecessor merely as a result of
succession . The Shaw-Union relationship can only be re-
garded as one based on Section 8(f). Therefore, no pre-
sumption of majority support of the Union can be based
upon the Shaw-Union relationship.
With respect to the alternate theory advanced by the
General Counsel and the Union regarding the existence
of an enforceable 8(f) agreement, Respondent initially
argues that the complaint did not allege an 8(f) issue and
objects to consideration of the issue herein . I find no
merit to this argument . The 8(a)(5) allegation of the com-
plaint is sufficiently broad to encompass an 8(f) theory.
Moreover, the issue was raised both before the hearing
and during the hearing in motions and opening state-
ments . All parties treated the issue fully in their respec-
tive briefs. I conclude that the issue has been fully and
fairly litigated so that no impediment from a due-process
standpoint to a decision on the merits of the 8(f) issue
exists.
Turning to the merits of this issue I have no difficulty
in concluding that any agreement reached between the
parties in the nature of an agreement to hire Shaw em-
ployees would constitute an 8(f) agreement. It obviously
would be an agreement between a union and employer in
the construction industry covering work not yet ac-
quired and employees not yet hired . But the real issue is
exactly what did the parties agree to and was that agree-
ment repudiated by Respondent during its effective term.
While it is undisputed that the parties agreed that the
project agreement would apply if Respondent was the
successful bidder, it is disputed whether the parties
agreed to something else, the rollover of all Shaw em-
ployees within their Shaw classifications, an agreement
which on its face would appear to be contrary to the
project agreement 's exclusion , at least, of inspectors. I
conclude that there was no meeting of the minds on this
matter and no clear agreement reached between the par-
ties.12 In reaching this conclusion I do not credit that
testimony of Baynes that claims agreement on a "com-
plete rollover." I do not attribute to Baynes an intention
12 The Board in McLean County Roofing, 290 NLRB 685 ( 1988), in dis-
cussing the Deklewa principles at 686:
Implicit in these new governing principles is the fundamental re-
quirement that the parties to an 8 (f) relations reach a meeting of the
minds on all material terms and voluntarily enter into an agreement
MK-FERGUSON CO.
to prevaricate, however. But I received the distinct im-
pression that he was testifying in more precise language
than that actually used . And while Baynes even by ad-
mission of Respondent 's witness used or may have used
the term "rollover" in the discussion in reference to Re-
spondent 's hiring Shaw employees, it is clear neither
party specifically defined the term within the conversa-
tion on May 22. Even if Byrnes and Hokaj understood
the term to require the maintenance of the employees
within the same classification after hired by Respondent
they admitted to no such agreement . The only classifica-
tion specifically referred to by Baynes was foremen
whom he wanted a specific commitment from Respond-
ent to hire within the Shaw classifications . If there had
been agreement on a "complete rollover," there would
have been no need to refer to specific inclusion of fore-
men. And although Baynes testified he stated at the
meeting that he did not want any "picking and choos-
ing" by Respondent , he admitted herein that he was re-
ferring to people, as well as classifications' 3 and used the
term "everybody" in connection with the rollover. Every-
body refers to people, not classifications . Further, in his
testimony Baynes initially did not define "rollover" in
terms of employment in the same classification . He also
expressed uncertainty in his testimony regarding whether
Byrnes used the term "rollover" in his pre-May 22 tele-
phone conversation with Baynes setting up the meeting.
Baynes testified that he "believed " Byrnes used that term
in connection with the transition from Shaw if Respond-
ent was awarded the work.
There are additional reasons why I conclude that
Baynes, contrary to his testimony , did not make clear
that he was seeking a total rollover in all classifications
and Respondent did not agree to commit to such a roll-
over. Thus, after Respondent became the successful
bidder and it was clear that the parties had a dispute re-
garding the unit inclusion of inspectors/testers and
sketchers, the Union in its August 20 letter to Respond-
ent advised Respondent:
When the United Association informally agreed to a
"rollover" of United Association members of the
project from B . F. Shaw to M-K Ferguson, we did
so on the express assumption that no United Associa-
tion jobs would be lost in the transition . [Emphasis
added.]
Had Baynes believed that he, Byrnes and Hokaj had ex-
changed language constituting a specific agreement to
"rollover" all Shaw employees in classification it is un-
likely the above letter would have used such a vague
term as "express assumption " in referring to the parties'
agreement.
Moreover, I find it doubtful that Byrnes and Hokaj
would have expressly agreed to a "rollover" commit-
ment which would have included inspectors/testers and
10 That Respondent agreed to "no picking and choosing" is evidenced
by its ultimate offer of employment to all Shaw employees , including in-
spectors and sketchers who, when they did not desire to return to man-
ualcraft work , were allowed to apply for work as inspectors and engineer
helpers . Moreover , Byrnes admitted he agreed with Baynes to take all
the Shaw employees.
783
sketchers when Respondent expressly had sought agree-
ment from the Building and Trades Department of the
AFL-CIO and the Union on application of the project
agreement and knew that it would rely upon that agree-
ment to exclude the inspectors/testers and sketchers
from the unit. Byrnes and Hokaj obviously anticipated
union objections to the exclusion of the disputed classifi-
cations if Respondent succeeded Shaw. Byrnes candidly
admitted as much in his testimony . Further, on May 27,
Byrnes advised Dupont that Respondent anticipated ob-
jections by the Union to utilizing nonmanual personnel
for sketching and material take off. However, being
more concerned with obtaining a commitment for a
smooth transition in order to placate Dupont, Byrnes and
Hokaj specifically failed to raise any anticipated issues
with Baynes . They were content to allow Baynes to
"assume" that the application of the project agreement
would not result in any losses in classifications as a result
of the transition from Shaw to Respondent . Thus, their
conduct in dealing with Baynes may be regarded as, at
best, less than candid. Nevertheless, I am not persuaded
that they intentionally created in Baynes ' mind the belief
as opposed to his own assumption that the transition
would incorporate a rollover in all instances within clas-
sification separate from any provisions of the project
agreement . It must be recalled that the May 22 discus-
sion regardless of whatever terminology was used was
prefaced by, and in the context of, the initial agreement
between the parties at the beginning of the meeting that
the project agreement would govern their relationship if
Respondent was the successful bidder. I therefore find
that neither Byrnes or Hokaj reached a "meeting of the
minds" with, or made a commitment to, Baynes to "roll-
over" Shaw inspectors/testers and sketchers within their
classifications, or that they otherwise waived the position
that the project agreement excluded these classifications
from the bargaining unit. t4
Finally, in this regard, as Respondent 's brief argues,
any waiver by Respondent of reliance on the project
agreement to exclude the disputed classifications would
constitute a modification of the project agreement which
expressly excluded "Inspectors" and "Professional engi-
neers and their helpers." As noted, Respondent had oper-
ated for 4 years under the project agreement excluding
these classifications and those employees doing the same
work as the former Shaw inspectors/testers and sketch-
ers. The project agreement by its terms not only super-
seded all other agreements , but it also prohibited amend-
ment or supplementation "except by mutual consent of
the parties hereto, reduced to writing and duly signed by
each." t s No written agreement flowed from the May 22
14 The Union argues in its brief that Respondent 's contention that the
project agreement excludes the former Shaw inspectors and former Shaw
sketchers as engineer helpers is incorrect Whether or not Respondent's
position is correct it is at least sufficiently reasonable and well founded to
be advanced in good faith , particularly in view of Respondent's past 4-
year practice under the project agreement which indisputably had ex-
cluded those persons doing the same work as the former Shaw inspectors
and sketchers
15 Project agreement, art. Xl.
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting between Baynes, Byrnes, and Hokaj . Although
as the Union argues , under certain circumstances there
may be oral modification of an agreement despite its pro-
hibitions otherwise , the instant case presents no circum-
stances warranting a modification finding . There is no
evidence herein to suggest that the parties understood
themselves to be modifying the project agreement. Even
if they did, it does not appear that they had the authority
to do so since it was negotiated by the building and
trades department on behalf of all the signatory unions
including the Union herein . Obviously, the building
trades department was not party to any modification.
In light of all of the above I find and conclude that the
parties herein reached an enforceable 8(f) agreement only
to hire all of Shaw's unit employees in the event Re-
spondent was successful in its bid for the general and
mechanical work on the SRP . I find , however, that there
was no meeting of the minds and no specific agreement
that Shaw's inspectors/testers and sketchers would be
hired by Respondent within the unit . In the absence of
such agreement I find no breach or repudiation of agree-
ment in Respondent 's employing employees in these clas-
sifications outside the unit in conformance with Respond-
ent's interpretation and practice under the project agree-
ment . Consequently, I find Respondent did not violate
Section 8 (a)(5) and (1) of the Act with respect to unilat-
erally excluding the inspectors/testers and sketchers
from the bargaining unit when it assumed the work for-
merly done by Shaw.
CONCLUSIONS OF LAW
3. All employees of Respondent at the Savannah River
Project engaged in the recognized historical and tradi-
tional craft jurisdiction of the Unions including the UA
who are signatory to Respondent 's project agreement,
excluding executives, professional engineers and their
helpers, superintendents , assistant superintendents, in-
spectors, timekeepers , messengers , clerical employees,
employees above the position of craft general foremen,
and all guards and supervisors as defined in the Act con-
stitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. The Union has not been established as the majority
collective-bargaining representative under Section 9(a) of
the Act of the employees in the unit set forth above in
paragraph 3, but Respondent and the Union agreed
under Section 8 (f) of the Act to the application of Re-
spondent 's project agreement covering employees in the
unit described in paragraph 3 in the Union's traditional
craft jurisdiction.
5. Respondent did not breach an agreement with the
Union or otherwise violate Section 8 (a)(5) and (1) of the
Act on or after September 28, 1987, when it excluded
from the unit set forth above in paragraph 3 those
former employees of B. F. Shaw Co., employed in the
classifications of inspectors/testers and sketchers.
6. The Respondent has not in any other manner violat-
ed Section 8(a)(5) and (1) of the Act.
On these findings of fact and conclusions of law and
on the entire record in this case , I issue the following
recommended"
1. Respondent , MK-Ferguson Company, is an employ-
er in the building and construction industry engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, is a labor organization
within the meaning of Section 2(5) of the Act.
ORDER
The complaint is dismissed in its entirety.
16 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses