Progressive Construction Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1368 (N.L.R.B. 1975)

1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Progressive Construction Corp. and Union Insular de
Trabajadores Industriales y Construcciones Elec-
tricas, Inc. and Puerto Rico District Council of
United Brotherhood of Carpenters and Joiners of
America (AFL-CIO),' Party to the Contract. Case
24-CA-3509
June 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On December 31, 1974, Administrative Law Judge
Samuel M . Singer issued the attached Decision in
this proceeding . Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief, which
in part was a response to General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act , as' amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings ,2 and conclusions of the Administrative Law
Judge with the following additions and to adopt his
recommended Order.
We agree with the Administrative Law Judge, for
the reasons stated by him, that General Counsel has
failed to establish , as was his burden , that a majority
of the unit employees had not signed authorization
cards or had otherwise manifested an unwillingness
to be represented by Carpenters on either March 13,
when Respondent recognized Carpenters , or on April
1, when it executed a collective-bargaining agree-
ment with Carpenters containing a 7-day union-
security clause.
General Counsel contends , however, that since the
Respondent had a substantial and representative
complement at the time it recognized the Union
"majority concepts of Section 9, rather than Section
8(f) concepts, are applicable " here, and that therefore
Respondent separately violated Section 8(a)(1), (2),
and (3 ) of the Act by executing and maintaining a
collective-bargaining agreement which requires em-
ployees to join the Union after the seventh day of
Hereinafter called Carpenters.
2 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C.A 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
218 NLRB No. 209
employment, such requirement clearly exceeding the
permissible bounds of Section 8(a)(3) of the Act.3
Essentially, General Counsel argues that Section 8(f)
applies only to "prehire" agreements; i.e., collective
agreements entered into prior to the hiring of any
employees or less than a representative complement.
We do not agree.4
Section 8(f) provides, in relevant part, that it is not
a violation of Section 8(a) and (b) of the Act for
... an employer engaged primarily in the
building and construction industry to make an
agreement covering employees engaged . . . in
the building and construction industry with a
labor organization of which building and con-
struction employees are members . . . because (1)
the majority status of such labor organization has
not been established under the provisions of
section 9 of this Act prior to the making of such
agreement, or (2) such agreement requires as a
condition of employment, membership in such
labor organization after the seventh day following
the beginning of such employment . . . or (3)
such agreement requires the employer to notify
such labor organization of opportunities for
employment with such employer, or gives such
labor organization an opportunity to refer quali-
fied applicants for such employment, or (4) such
agreement specifies minimum training or experi-
ence qualifications for employment or provides
for priority in opportunities for employment
based upon length of service with such employer,
in the industry or in the particular geographical
area: [emphasis supplied] Provide4 That nothing
in this subsection shall set aside the final proviso
to section 8(a)(3) of this Act: Provided further,
That any agreement which would be invalid, but
for clause (1) of this subsection, shall not be a bar
to a petition filed pursuant to section 9(c) or 9(e).
As we read Section 8(f), the validity of the 7-day
union-security provision (clause 2, above) is not
dependent upon a finding that the agreement was
signed before the employer had hired a representa-
tive complement or before the union had attained
majority status in that unit. Rather, Section 8(f) is
written in the disjunctive. It provides that a collec-
tive-bargaining agreement in the construction indus-
try between qualified parties is not rendered unlawful
either because it was signed before the employer had
3 The parties stipulated that Respondent is engaged in the building and
construction industry and that the collective-bargaining agreement covered
employees engaged or to be engaged in that industry.
4 The Administrative Law Judge found it unnecessary to resolve this
issue in view of his conclusion that General Counsel failed to establish that
the Union did not represent a majority of the unit employees when it was
accorded recognition
PROGRESSIVE CONSTRUCTION CORP. 1369
any employees or before the union represented a
majority of such employees, or because it contains a
7-day union-security provision, or because it provides
for establishment of hiring halls, or because it gives
priority in employment to certain employees. Indeed,
the second proviso of Section 8(f) lends support to
such an interpretation. That proviso states that an
agreement is not a bar to a petition under Section
9(c) or (e) if it was executed pursuant to clause (1) of
Section 8(f), thus indicating that clause (1) is not
dependent on any other clause in that section.
Furthermore, the legislative history of Section 8(f)
makes it clear that the purposes which Congress
intended to achieve by Section 8(f)(1) and (2) are not
the same . The first clause (the prehire provision) was
enacted in recognition of the needs of construction
industry employers to know their labor costs before
they can bid on jobs, while the second clause
(allowing for 7-day union security) recognizes the
relatively short duration of most construction jobs.
Thus the Senate Committee on Labor and Public
Welfare noted in its report of the bill which later
became the Labor-Management Reporting and
Disclosure Act of 1959:5
In the building and construction industry it is
customary for employers to enter into collective
bargaining agreements for periods of time run-
ning into the future, perhaps 1 year or in many
instances as much as 3 years. Since the vast
majority of building projects are of relatively
short duration, such labor agreements necessarily
apply to jobs which have not been started and
may not even be contemplated. . . . One reason
for this practice is that it is necessary for the
employer to know his labor costs before making
the estimate upon which his bid will be based. A
second reason is that the employer must be able
to have available a supply of skilled craftsmen
ready for quick referral ... .
This bill . . . contains other provisions which
take into account the occasional nature of
employment in the building and constructiori
[industry]. It does so by reducing from 30 days to
7 the grace period before which the employee may
be required to join the union. The reduction in
this time allowance reflects the normally short
employment period for construction employ-
ees....
Accordingly, based on the foregoing, we find no
merit in the contention that the 7-day union-security
agreement entered into between admittedly qualified
parties is unlawful under the Act.
Moreover, the General Counsel's argument, in
effect, would accord greater rights to construction
trade unions before they represent any employees
than to such unions who represent a majority of an
employer's employees. Such a result would be
incongruous and deny the purposes which Congress
intended by Section 8(f) of the Act.
We shall, therefore, dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
5 S. Rep No 187 on S 1555, 86th Cong, 1st Sess (1959), p 28
DECISION
SAMUEL M. SINGER , Administrative Law Judge: This
proceeding was heard before me in Hato Rey, Puerto Rico,
on October 15 and 16, pursuant to charges filed May 13
and complaint issued June 12, 1974. As amended at the
hearing, the complaint alleges that Respondent violated
Section 8(a)(1) and (2) of the National Labor Relations
Act. All parties appeared and were afforded full oppor-
tunity to be heard , to examine and cross -examine witness-
es, and to introduce evidence. General Counsel and
Respondent subsequently filed briefs. Upon the entire
record and my observation of the testimonial demeanor of
the witnesses , I make the following:
Findings and Conclusions
1. JURISDICTION
Respondent , a Puerto Rico corporation with principal
office and place of business in Santurce, Puerto Rico, is
engaged in building construction throughout Puerto Rico.
During the representative past year its purchases in
interstate commerce (from States outside of Puerto Rico)
exceeded $50,000. I find that at all material times
Respondent has been and is an employer engaged in
commerce within the meaning of the Act and that assertion
of jurisdiction here is proper.
Puerto Rico District Council of United Brotherhood of
Carpenters and Joiners of America , AFL-CIO ("Car-
penters"), Party to the Contract , is a labor organization
within the meaning of Section 2(5) of the Act.
H. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Issues
The basic issues are:
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Whether Respondent recognized, executed, and
enforced a collective agreement with Carpenters as
exclusive bargaining agent of its employees in an appropri-
ate unit at a time when Carpenters did not represent a
majority of those employees, thereby violating Section
8(a)(2) and (1) of the Act.
2. Assuming Carpenters did not represent a majority of
Respondent's employees in the appropriate unit at the time
of its recognition, whether that recognition and subsequent
contract execution and enforcement were lawful under
Section 8(f) of the Act applicable to employers "engaged
primarily in the building and construction industry."
2. Respondent 's March 13 recognition of
Carpenters; the negotiations and April 1 collective
agreement
On March 7,i Carpenters wrote Respondent that it
represented its construction and maintenance employees
and requested recognition and bargaining. On March 13,
Carpenters President Molina met with Company President
Cherson and reiterated Carpenters' request for recognition
as majority representative of the Company's employees. It
is stipulated that Respondent on that date (March 13)
employed 424 employees in the appropriate bargaining
unit composed of all Company construction and mainte-
nance workers at its then seven construction projects in
Puerto Rico. Cherson, aware that Carpenters had been
attempting to organize Respondent's employees, asked for
"proof' and "confirmation" of Molina's majority claim.
Molina produced five packets of authorization cards, each
wrapped by rubber band, and placed them on Cherson's
desk. "Shuffling" through one of the packets "slowly,"
Cherson counted 50 cards-noting the project names and
employee signatures on those cards. He then determined
from visual and physical inspection that all five packets
were substantially equal in size ("the same bulk"),
"estimated" that Molina had about 250 cards (i.e., more
than the 213 constituting a majority), and agreed to
recognize Carpenters.2
Cherson then discussed the Union's demands, explaining
that the Company was hardly in a position to "adopt the
benefits that were in force [in] the [Employer] Association
contract" desired by Molina since (in Cherson's words)
"we have all of our projects under a lump sum contract,
with no escalation clause for union benefits." After several
more meetings and discussions of a company counterpro-
posal, the parties on April 1 executed a collective
agreement , effective through November 1975. It is stipulat-
ed that the agreement has been in full force and effect to
date; and that at the time of its execution (April 1) the
1 All dates are 1974 unless otherwise indicated.
2 Based upon Cherson 's credited testimony, which is consistent with that
of Molina (General Counsel 's only witness, called under sec 43 (b) of the
Federal Rules of Civil Procedure ) that each of the five packets contained
..more or less" the same number of cards ; that there were "about 50 cards to
a packet" ; that Cherson "riffled" through one "sort of counting them and
checking them" for a "few minutes"; and that Molina handed Cherson 230
to 240 signed authorization cards. Molina's testimonial account may,
however, be at odds with an unsigned preheating allegation (prepared for
him by a Board agent in the investigation of an election petition filed by
another union , infra, sec. B3), affirmed by Molina at the hearing as "true"
and accurate, that Cherson "did not count [the cards 1 and only picked up a
number of unit employees was "a figure between 424 and
440."
3. Carpenters' April 30 production of
authorization cards to the Board agent
Thereafter, on April 5, Charging Party ("UTICE") filed
an election petition seeking to represent the unit employees
covered by the foregoing Carpenters contract. When
Carpenters President Molina learned of this on April 24, he
called the existence of the April 1 collective agreement to
the attention of the Board agent (Miss Morales), and sent
her a copy of it. On April 30, the Regional Director
dismissed UTICE's petition, presumably because he
regarded the April 1 agreement as an election bar.
Also on April 30, Molina, in response to the Board
agent's request for "the evidence" or authorization cards
supporting Carpenters' majority claim, submitted to the
Regional Office 187 signed cards-26 less than the 213
required to establish Carpenters majority status on its
recognition date (March 13).3 Molina testified that prior to
the Board agent's (April 24) request, the 230 or 240 cards
earlier produced (March 13) to Company President
Cherson in support of his recognition request were, in
accordance with past "practices," distributed to his 13
organizers servicing the seven construction projects in
order to enable them to attend to certain administrative
tasks-e.g., securing dues-checkoff authorizations, prepar-
ing identification cards, and drawing up medical coverage
lists. He further testified that he requested his organizers to
return those cards so that they could be supplied to the
Board agent; that he furnished the agent with all "that I
had with me at that time," indicating that the organizers
may have failed to turn in all cards; and that he did not
consider the Board agent's request for "evidence" as
requiring him to file all cards since "we never spoke about
that." 4
B. Conclusions
1. The majority issue
a. It goes without saying that employer recognition of a
union which is not the choice of a majority of the unit
employees, constitutes unlawful assistance and support
within the meaning of Section 8(a)(2) and (1) of the Act.
The granting of exclusive recognition to a union which has
failed to obtain a majority at the time of recognition is
unlawful whether its opponent is a competing union or "no
union ." International Ladies' Garment Workers' Union,
AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.LR.B.,
366 U.S. 731 (1961). It is, however, the burden of proof of
small group and touched them "
8 Molina simultaneously submitted an alphabetical list of the cardsig-
ners, but for undisclosed reasons that list contained only 173 names.
4 Subsequent to filing of the unfair labor practice charges here, alleging
Respondent's unlawful recognition of Carpenters as majority representative,
the Regional Director on May 31 revoked his prior (April 30) dismissal of
UTICE's representation petition , disposition of which presumably awaits
outcome of the instant proceeding . Also on May 31, the Regional Director
dismissed charges by Respondent against UTICE (and another union)
alleging picketing in violation of Sec . 8(bX7XA) of the Act, with an object to
force recognition and bargaining in the face of Respondent 's claimed lawful
recognition of Carpenters.
PROGRESSIVE CONSTRUCTION CORP. 1371
General Counsel to establish that the union accorded
exclusive recognition was not the majority representative
where , as here , the complaint so alleges and his case rests
upon that narrow theory . Playskool, Inc., et al. v. N L.R.B.,
477 F.2d 66 , 71 (C.A. 7, 1973). See also American Beef
Packers, Inc., 187 NLRB 996, 997 (1971), affd. sub nom.
Arthur L Morgan Union, Local No. 3 v. N.LR. B., 463 F.2d
818,821 (C.A.D.C.,( I 972). Based on the entire record, I find
that he has not met that burden in this case.
b. General Counsel's position that Carpenters was not
the majority choice of Respondent 's employees is predicat-
ed on the circumstance that Union President Molina
submitted only 187 cards on April 30 , in response to the
Board agent's request in the course of a representation
proceeding 5 for "the evidence" supporting majority status.
General Counsel in effect asks me to infer that the Union
lacked a majority 7 weeks earlier (March 13) when it was
extended recognition . Molina testified , however , that he
had 230 to 240 cards when he demanded recognition; that
he submitted all of these for Company President Cherson's
inspection; and that the discrepancy between the number
of cards produced to the Board agent and to Cherson is
explained by the fact that the 13 organizers to whom he
had distributed them after obtaining recognition (between
March 13 and April 30) for administrative purposes
(securing dues checkoffs , preparing identification cards,
setting up the medical plan, etc .) simply failed to return all
cards.6
In my view , Molina's explanation that some of the cards
seemingly went astray in the redistribution or recollection
of the cards to and from the organizers is plausible and I
credit it . To be sure, there is no evidence that Molina
communicated the explanation to the Board agent, but, by
the same token , there is no evidence that the Board agent
inquired about the existence of any additional cards
although aware of the Union's majority claim . Under the
circumstances here presented , particularly in light of the
credited testimony as to the missing cards , the inference
upon which General Counsel relies to establish lack of
majority on the recognition date (March 13) and contract
execution date (April 1)-i.e., the April 30 submission to
the Board agent of only 187 authorization cards in the
representation case-"is no substitute for proof, which is
the General Counsel's burden , that [Carpenters ] did not in
fact represent a majority of Respondent's employees at the
relevant times ." (American Beef Packers, Inc., supra.) It was
incumbent on General Counsel to adduce direct and
affirmative evidence-such as proof that a majority of the
unit employees did not sign authorization cards or that
they otherwise manifested unwillingness to be represented
by Carpenters on the critical dates in issue. The "indirect
technique" resorted to, is insufficient . Benjamin F Rich
Company, 191 NLRB 457 , 459 (1971 ). See also Walker's
Midstream Fuel & Service Co., 208 NLRB 158 ( 1974).
C. In addition to the foregoing burden-of-proof con-
tention , Respondent urges (br. pp . 22-24) that it recog-
3 The unfair labor practice charges were not filed until May 13.
8 Molina was nonetheless under the impression that his organizers
turned in , and that he then handed over to the Board agent , all of the
approximately 230 cards. Indeed , he so informed Company President
Cherson in the first week of May when Cherson questioned hun about the
attempted organizational drive of petitioner in the representation proceed-
ing (UTICE).
nized Carpenters in the good-faith belief that the Union
represented a majority of the unit employees when Molina
requested recognition-relying, among other things, upon
Company President Cherson's request for "confirmation"
of Molma's majority claim; his examination of one of the
five produced packets of cards containing 50 signatures;
and his determination, based on his observation that all
five stacks were of equal size, that Molina in fact presented
him with 250 cards. Although I have grave misgivings that
these factors alone would support the finding, urged by
Respondent, that Cherson "met the required standard of
satisfying [himself] through reasonable means that the
Union represented a majority," 7 such finding, even if
warranted, would be of no avail. Recognition of a minority
union "cannot be excused by a showing of good faith."
International Ladies' Garment Workers Union v. N.LR.B.,
supra. Not even "reasonable effort" to determine a union's
majority status is a defense where the union, when
recognized, was actually a minority union. (Id at 739, fn.
11.) See also N.L.R.B. v. Hunter Outdoor Products, Inc., 440
F.2d 876, 879 (C.A. 1, 1971). Be that as it may, an
employer is not required to make an exhaustive card check
before granting recognition to a union (N.LRB. v. Gissel
Packing Co., Inc., 395 U.S. 575, 609 (1969), particularly
where, as here, the recognitional demand was made when
no competing union was seeking representations-although
the employer does, of course, assume the risk of violation if
it turns out that the union did not in fact have a majority.
Under all of the particular circumstances here presented,
I am unconvinced that General Counsel has met his
burden of establishing by a clear preponderance of credible
evidence that Carpenters was not the majority representa-
tive of Respondent's employees in the stipulated bargain-
ing unit on March 13, the date of its recognition by
Respondent, as alleged in the complaint. I conclude that it
has not been shown that Respondent violated Section
8(a)(2) and (1) of the Act.
2. Applicability of Section 8(f) of the Act
Respondent further contends that even assuming that
Carpenters failed to represent a majority of the unit
employees at the time of its recognition (March 13) or
execution of the collective agreement (April 1), Respon-
dent's conduct was nevertheless protected under Section
8(f) of the Act expressly immunizing employers "engaged
primarily in the building and construction industry" from
the majority requirement strictures of Section 8(a) of the
Act. The parties have stipulated here that Respondent was
indeed engaged primarily in the building and construction
industry and that the April 1 collective- agreement covered
employees engaged or to be engaged in said industry.
Citing legislative history and Board cases, General Counsel
contends, however , that the special 8(f) exemption was
intended to apply only to "prehire" agreements, i.e.,
collective agreements executed prior to the hiring of any
r Thus, for example, the four packets of uninspected cards could have
been blanks or signed by individuals not in the unit.
a Cf. Timbaher Towing Company, Inc., 208 NLRB 613 (1974); Sentinel
Protective Agency, Inc, 211 NLRB 552 (1974); Dale's Super Valu, Inc., 181
NLRB 698 (1970).
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees or of less than a representative complement of
employees; and that since "a substantial and representative
complement" here already existed at the time of recogni-
tion and contract execution, the "majority concepts of
Section 9, rather than Section 8(f) concepts, are applica-
ble." (G.C. br. p. 5.) Respondent, on the other hand,
contends that legislative history and Board cases support
its view that "the existence of a representative complement
of employees when the agreement was executed is of no
significance"; and that "Section 8(f) was applicable to an
agreement executed after the employer had begun to work
on the project involved with a substantial crew of
workers." (Resp. br. p. 19.)
In view of the conclusion already reached that General
Counsel has failed to establish that Respondent recognized
Carpenters and executed its collective agreement with it at
a time when that union was not the representative of a
majority of the unit employees , it is unnecessary to resolve
this issue.
CONCLUSIONS OF LAW
It has not been established that Respondent has
unlawfully assisted and supported Carpenters, in violation
of Section 8(a)(2) and (1) of the Act, by granting
Carpenters exclusive representative status at a time it did
not represent a majority of the unit employees; or by
thereafter executing or enforcing a collective agreement
with Carpenters.
ORDERS
Upon the basis of the foregoing fmdings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that the complaint be dismissed in its
entirety.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and Order, and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.