Pullman Building Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1048 (N.L.R.B. 1980)

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pullman Building Company ad Operating Engi-
neers Local Union No. 3, International Union of
Operating Engineers, AFL-CIO. Case 20-CA-
14643
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAI.E
On May 14, 1980, Administrative Law Judge
William L. Schmidt issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel filed limited exceptions to the Administrative
Law Judge's Decision, and Respondent filed an an-
swering brief to the General Counsel's exceptions.
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, except as modified herein.
1. The General Counsel has excepted to the Ad-
ministrative Law Judge's limitation of the remedy
to a date 6 months prior to the filing of the charge.
The General Counsel argues that, where the 10(b)
period is tolled for purposes of filing of a charge, it
is likewise tolled for purposes of the remedy. We
agree.
In confining the remedy period to a date 6
months before the charge was filed, the Adminis-
trative Law Judge relied on Don Burgess Construc-
tion Corporation d/b/a Burgess Construction and
Donald Burgess and Verlon Hendrix d/b/a V & B
Builders, 227 NLRB 765 (1977), enfd. 596 F.2d 378
(9th Cir. 1979). In that case, the Board reversed the
Administrative Law Judge's limitation of the reme-
dial period to 6 months before the filing of the
charge. The Board held that the respondent's con-
cealment of its unfair labor practices tolled the
i Respondent has implicitly 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 re-
spect 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 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
In fn. 18 of his Decision, the Administrative Law Judge stated that Re-
spondent's resignation in May 1979 from the multiemployer association
"effectively limits the appropriate unit to the Respondent's own employ-
ees." We note that such a withdrassal from a multiemployer bargaining
unit. if timely and effective. would limit the appropriate unit to Respond-
ent's employees only upon the expiration of the 1977-80 collective-bar-
gaining agreement.
251 NLRB No. 145
10(b) period with respect to the filing of the
charge, and therefore that the limitation period was
tolled in regard to the remedy as well. Although
Respondent in this case did not, as did the respond-
ent in Burgess, fraudulently conceal its violation of
Section 8(a)(5) and (1) of the Act, there is no logi-
cal reason to restrict the remedy to 6 months
before the charge was filed, where, as in Burgess,
the Union did not immediately become aware of
the unfair labor practices through no fault of its
own. Once the 10(b) period has been tolled for the
purpose of filing the charge, the case is before us
on the same basis as is any other case, and hence
the usual make-whole remedy is the appropriate
one. 2 Accordingly, we shall order Respondent to
comply with the "Master Agreement" retroactively
to the date of the commencement of the unfair
labor practices found herein, including making em-
ployees whole for the losses they incurred as a
result of Respondent's refusal to abide by the terms
of the agreement.
2. In his recommended remedy, the Administra-
tive Law Judge provided for interest to be comput-
ed on the moneys owed by Respondent to the trust
funds as specified in Florida Steel Corporation, 231
NLRB 651 (1977). Under Merryweather Optical
Company, 240 NLRB 1213 (1979), the Board does
not compute interest on trust fund payments in the
same manner as it computes interest on backpay.
Rather, it leaves the determination of the interest,
if any, to the individual provisions of employee
benefit fund agreements, which may vary. Accord-
ingly, we shall issue an amended remedy to reflect
Board policy in this matter, as well as to require
full retroactive compliance by Respondent with the
terms of the Master Agreement.
AMENDED REMEDY
Having found that Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the
Act.
We shall order Respondent to comply with the
Master Agreement retroactively to the date it com-
menced its unfair labor practices and for the bal-
ance of its term, including making employees
whole for the losses they incurred as the result of
Respondent's refusal to abide by the terms of such
agreement. Backpay is to be computed in a manner
consistent with Board policy as set forth in Ogle
I Allied Products Corporation, Richard Brothers Division, 230 NLRB 858.
859 (1977). Accord: AMCAR Division, ACF Industries. Incorporared. 234
NLRB 1063, 1064 (1978), enfd, as modified 596 F 2d 1344 (8th Cir 1979).
PULLMAN BUILDING COMPANYL 1049
Protection Service, Inc., and James L. Ogle, an Indi-
vidual, 183 NLRB 682 (1970), with interest thereon
as set forth in Florida Steel Corporation, 231 NLRB
651 (1977). In addition, we shall require Respond-
ent to make the appropriate trust funds whole for
losses suffered during the same period as a result of
Respondent's failure to adhere to the Master
Agreement. 3 We shall order Respondent to pro-
vide the Union with the information requested by
it, in writing, on or about April 3, 1979.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Pullman Building Company, San Carlos, California,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Operating Engi-
neers Local Union No. 3, International Union of
Operating Engineers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All operating engineers, apprentices and help-
ers employed by Pullman Building Company
in the geographic area specified in the Master
Agreement between the Northern California
Home Builders Conference and the Operating
Engineers Local Union No. 3, International
Union of Operating Engineers, AFL-CIO; ex-
cluding all other employees, office clerical em-
ployees, timekeepers, messenger boys, inspec-
tors, confidential employees, guards, superin-
tendents, assistant superintendents, general
foremen, foremen and supervisors as defined in
the Act.
(b) Failing and refusing to abide by the terms of
the Master Agreement for Northern California be-
tween the Northern California Home Builders Con-
ference and Operating Engineers Local Union No.
3, International Union of Operating Engineers,
AFL-CIO, effective by its terms from June 16,
1977, through June 15, 1980.
a Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments. We leave to the compliance stage the question
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy These additional
amounts may be determined, depending upon the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, by evidence of any
loss directly attributable to the unlawful withholding action. which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc., but not collateral losses
(c) Failing and refusing to provide Operating
Engineers Local Union No. 3, International Union
of Operating Engineers, AFL-CIO, with the infor-
mation requested by it, in writing, on or about
April 3, 1979.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds necessary to effectuate the policies
of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment.
(b) Comply with the terms and conditions of the
above-described Master Agreement retroactively,
including making the appropriate trust funds and
employees whole in the manner described above in
the section of this Decision and Order entitled
"Amended Remedy."
(c) Furnish the above-named Union with the in-
formation requested by it, in writing, on or about
April 3, 1979.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary or useful to a deter-
mination of the moneys due under the terms of this
Order.
(e) Post at its Paradise Cay, California, jobsite
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
4 In the event that this Order is enfirced h a Judgment of a. Ulied
Slates Court of Appeals. the ords in the notice reading "Posled hb
Order of the National ILabor Relations Board" shall read Posted P'lrsu-
ant to a Judgment of the United Stales Court of Appeals Enforcing an
Order of the National abor Relations Board "
PULLMAN BUILDING COMPAN I O 
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REILATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Operating Engineers Local Union No. 3,
International Union of Operating Engineers,
AFL-CIO, as the exclusive bargaining repre-
sentative of our employees in the following ap-
propriate unit with regard to rates of pay,
wages, hours, and other terms and conditions
of employment:
All operating engineers, apprentices and
helpers employed by us in the geographic
area specified in the Master Agreement be-
tween the Northern California Home Build-
ers Conference and Operating Engineers
Local Union No. 3, International Union of
Operating Engineers, AFL-CIO; excluding
all other employees, office clerical employ-
ees, timekeepers, messenger boys, inspectors,
confidential employees, guards, superinten-
dents, assistant superintendents, general fore-
men, foremen and supervisors as defined in
the Act.
WE WILL NOT fail and refuse to abide by the
terms of the Master Agreement for Northern
California between the Northern California
Home Builders Conference and the above-
named labor organization, effective by its
terms from June 16, 1977, through June 15,
1980.
WE WILL NOT fail and refuse to furnish the
above-named Union with the information re-
quested by it, in writing, on or about April 3,
1979.
WE WILL NOT in any like or related manner,
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, upon request, bargain collectively
with the above-named Union as the exclusive
bargaining representative of our employees in
the above-described unit with regard to rates
of pay, wages, hours, and other terms and con-
ditions of employment.
WE WILL comply with the terms and condi-
tions of the Master Agreement to which we
are bound.
WE WILL make our employees whole, with
interest, for any losses they may have suffered
as a result of our failure to apply the terms and
conditions of the Master Agreement, including
the making of the necessary payments to the
appropriate fringe benefit trust funds.
WE WII . furnish the Union with the infor-
mation requested by it, in writing, on or about
April 3, 1979.
PUl.MAN BUIl.)IN(; COMPANY
DECISION
SI A ILMI'NI 01 I IF CASE
WIlI IAM L. SCIMIIr, Administrative Law Judge:
This matter was heard before me on December 5 and 6,
1979, in San Francisco, California.' The proceeding is
based on a complaint issued on behalf of the General
Counsel by the Regional Director for Region 20 on July
31, pursuant to a charge against Pullman Building Com-
pany (hereinafter called the Respondent), filed by Oper-
ating Engineers Local Union No. 3, International Union
of Operating Engineers, AFL-CIO (hereinafter called
the Union), on June 12.
In essence, the complaint alleges that the Respondent
violated Section 8(a)(l) and (5) of the Act by refusing to
abide by the terms of a multiemployer collective-bargain-
ing agreement between the Northern California Home
Builders Conference (hereinafter called NCHBC) and the
Union and by refusing to furnish certain information to
the Union which is alleged to be necessary to police
compliance with said agreement. The Respondent's
answer denies that NCHBC is the collective-bargaining
representative of the Respondent or that the NCHBC
collective-bargaining agreement with the Union is appli-
cable to its employees. The Respondent's answer is silent
with respect to the allegation that it refused to furnish
the Union with the requested information but it specifi-
cally denies that it engaged in any unfair labor practices.
Upon the entire record in the case,2 including my ob-
servation of the demeanor of the witnesses and upon the
consideration of the briefs filed, I make the following:
FINDINGS OF FAC
1. BUSINESS OF THE RESPONDINIF
The Respondent, a California corporation with an
office and place of business in San Carlos, California, has
been engaged in the development of real estate in Marin
County, California, which development is known as
Paradise Cay. At all times material herein, the Respond-
ent has been a member of the Building Industry Associ-
ation of Northern California (hereinafter called the BIA),
an organization of employers which exists, in part, for
the purpose of representing its employer-members in col-
lective bargaining with various area labor organizations.
During the calendar year ending December 31, 1978, the
employer members of BIA, collectively, provided serv-
i Dates not otherwise specified in this Decision are 1979
The General Counsel's unopposed motion to correct the transcript
herein is hereby granted. Those corrections as well as additional correc-
tions made sua sponte are set forth herein as Appendix B [omitted from
publication].
PULLIMAN UILDING CONWANY~ 1051
ices valued in excess of $50,000 for other enterprises
within the State of California. each of which meets the
applicable Board standard for the exercise of jurisdiction
on a direct basis.3 Based on its membership in the BIA at
times material hereto, I find that the Respondent is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act. I further find that it would effectuate the
purposes of the Act to assert jurisdiction in this dispute.
II. THE ABOR ORGANIZATION
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111. THE ISSUES
In essence, the Respondent denies that it was ever a
builder member of the BIA which is the only class of
members in the BIA who have vested that organization
with authority to bargain with the Union. Accordingly,
the Respondent claims that it is not bound to the agree-
ment which BIA's alleged agent, NCHBC, negotiated
with the Union. In addition, the Respondent asserts that,
even if it were bound to the agreement, as alleged, the
type of work which it has performed at its Paradise Cay
development since June 1978 is not subject to the agree-
ment between NCHBC and the Union. For the reasons
more fully explained below, I find the Respondent's con-
tentions lack merit.
IV. THE EVIDENCE
A. The Respondent's Operations
As noted above the Respondent is a California corpo-
ration which maintains an office in San Carlos, Califor-
nia. The Respondent was formed in approximately 1950.
Presently, it has two subsidiaries-one subsidiary, Tim
Industries, manufactures architectural aluminum prod-
ucts, and KMC, the other subsidiary, holds real estate for
investment purposes. Tim Industries in turn has a subsidi-
ary in Hawaii which markets Tim's products there. Ac-
cording to the Respondent's vice president, William L.
Kerwin, the Respondent is basically a land developer
which owns property in Marin County, California-cur-
rently being developed-and a small parcel of undevel-
oped land in Hillsborough, San Mateo County, Califor-
nia. The Marin County property is the Paradise Cay de-
velopment located on the leeward side of the Tiburon
peninsula. The Paradise Cay development is an 80-acre
tract which has been subdivided into 234 lots for the
construction of single-family residences. In addition, the
development includes a yacht harbor for the berthing of
boats. The development of Paradise Cay began in 1956. 4
By 1972 or 1973, the Respondent completed certain of
the improvements in the subdivision such as streets,
curbs, gutters, and sewer lines and, for reason discussed
below, that work ceased until after June 1978. In 1974
and 1975 the Respondent constructed houses on at least
A the hearing the Respondent amended its answer to so admit.
4 The actual work at Paradise Cay is being performed by Paradise Cay
Company which Kerwin described as a "registered d/b/a" f the Re-
spondenl
some of the lots which had been improved by the prior
work. Further development of Paradise Cay was slowed
by a water moratorium which was declared in Marin
County in approximately 1973 or 1974 due to a critical
water shortage in the area. Although the Respondent
was permitted to continue building on those lots for
which it had already paid a water connection fee, it was
not able to continue with the development of the Para-
dise Cay property from sometime in 1975 until after June
1978 when the water moratorium ended. Beginning in
mid-1978, the Respondent commenced to seek approval
of the appropriate local authorities to improve further
lots in the subdivision but this improvement work-the
installation of streets, sidewalks, curbs, water lines,
sewers, gutters-was done by employees of a subcontrac-
tor rather than employees of the Respondent. In addi-
tion, the Respondent arranged with the utility and televi-
sion cable companies to install their respective lines.
At the same time that the Respondent sought to fur-
ther expand Paradise Cay, it found it necessary to per-
form certain maintenance work on previously installed
improvements within the subdivision. As described at the
hearing, this maintenance work consisted essentially of
raising the level of certain man-made land areas which
extend out into the San Francisco Bay in order to pro-
tect the harbor area and boat berths from the erosive ef-
fects of unnatural wave action caused primarily by a
ferry service from the Tiburon peninsula to San Francis-
co.5 For this latter work, the Respondent utilized its
own employees, some of whom were engaged in the op-
eration of a Cat D-80, a Northwest D-80, a pull scraper,
a backhoe, and an end-loader. It is undisputed that the
operation of the foregoing equipment is the type of work
which is normally performed under the Union's agree-
ment wih NCHBC.
B. The Union s Discovery of Paradise Cay
Sometime in March, Harvey Pahel, a representative of
the Union in the area, received a complaint from a con-
tractor to the effect that the Respondent was being per-
mitted to operate on a nonunion basis to perform the
same work as the complaining contractor was required
to perform under the labor agreement. This allegation
led Pahel to visit the Paradise Cay jobsite on March 29
where he observed the pieces of heavy equipment previ-
ously noted in operation. Pahel was also able to learn
from an employee at the jobsite that the work was
indeed being performed on a nonunion basis.
s More specifically, Kerwin testified that in the Paradise Cay develop-
menl, some homes are built on the water in such a fashion that some
homeowners can berth a boat behind their home and have direct acccs
to San Francisco Bay. When the Respondent acquired the property, rock
from a hill on the property was quarried and distributed to form a perim-
eter for man-made fingers which are homesites and which extend out into
the Bay. Thereafter, the Bay fingers were dredged and the mud from the
dredging operation was put in the dikes created by the rock fingers The
wase action alluded to above breaks over the lop of some of the land
extending out into the bay, eroding the surface (including the road-to-the-
yacht harhbor) and disturbing the boats berthed at indi idual homes as
well as at the yacht harbor The maintenance xwork insolsed raising tIh
level or the land to protect the area from the wave action This work
was performed in the period from mid-1978 to mid-1979
PUll MAN BUILDING COMPANY lost
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pahel returned to his office and commenced an investi-
gation of the Union's records to determine if the Re-
spondent was bound to a collective-bargaining agreement
and whether or not the Respondent was making fringe
benefit payments into the appropriate trust funds. As a
result of his investigation, Pahel became convinced that
the Respondent was bound to an agreement with the
Union and he also learned the Respondent was not
paying fringe benefits for the Paradise Cay employees.
The result of Pahel's investigation led him to return to
the jobsite on April 2. He was accompanied by Jim Bar-
rett of the Laborers Union. At this time, Pahel spoke to
Tom Mosley, the Respondent's project manager at Para-
dise Cay. Pahel asked Mosley why the Respondent was
not abiding by the agreement it had with the Union.
Mosley informed Pahel that the Respondent was merely
moving dirt at the site, that the Respondent was not en-
gaged in building, and, therefore, the Respondent did not
feel that it was obligated to follow the agreement for the
work being performed. Pahel responded that the agree-
ment was applicable to any work done for the purpose
of establishing a base on which to build a house. Mosley
replied to Pahel's assertion by saying that he did not
think so and told Pahel further that he could take what-
ever steps he felt necessary in order to take care of the
problem. Following Pahel's second visit to the jobsite, he
traveled to the Union's district office in San Francisco
where he requested that his superiors seek an audit of the
Respondent's books.
In paragraph 10 of the complaint, it is alleged that on
or about April 3 the Union demanded in writing, that the
Respondent supply the Union with certain payroll re-
cords necessary to ascertain whether or not the Re-
spondent was complying with the NCHBC agreement
with the Union in the payment of wages and fringe bene-
fits. The complaint further alleges that in May, Kerwin
refused access by the Union to the requested payroll re-
cords. Complaint paragraph 10 also alleges that the
aforementioned information requested by the Union is
necessary in the performance of its function as the col-
lective-bargaining representative of the employees of the
NCHBC members. The Respondent's answer is silent
with respect to all of the allegations in paragraph 10.
C. The Multiemployer Association
The BIA is a trade association comprised of a variety
of businesses involved in the homebuilding industry in
Northern California. It performs several different serv-
ices on behalf of its members in an effort to promote the
interests of the industry, including representing its build-
er members in collective bargaining with area trade
unions.
The Respondent's involvement with an industry trade
association predates the birth of the BIA. In approxi-
mately 1955, the Respondent became one of the charter
members of a predecessor trade association known as the
Peninsula Home Builders Association (hereafter called
the PHBA). At some unspecified time prior to 1970, a
series of consolidations and mergers occurred among the
several of the Northern California trade associations in
the homebuilding industry, including PHBA. Eventually,
the merger and consolidated process resulted in the
emergence of a single organization, the BIA, in 1974.6 In
the period preceding the formation of the BIA, the
NCHBC existed as a federation composed of the various
different homebuilding trade associations which, among
other things, negotiated collective-bargaining agreements
on behalf of its members. Following the formation of the
BIA, the NCHBC continued to exist for the purpose of
performing labor relations and labor law services for the
BIA. 7
As previously noted, the BIA is comprised of a variety
of businesses. The bylaws of the BIA provide for seven
classes of membership. Pertinent to this decision are the
membership classifications entitled builder members and
land developer member.8 Under the bylaws of the BIA,
a builder member is described as any individual builder
or contractor or an officer of a corporation normally li-
censed as an A or B-I contractor under the laws of the
State of California, who subscribes to the code of ethics
of the BIA and who is acceptable to the BIA's board of
directors. A land developer member is defined under the
BIA's bylaws as an individual or company which devel-
ops land for construction and/or subdivision use but who
does not actually perform the construction of any struc-
ture on such land. Very significant differences exist with
respect to the BIA's authority in connection with collec-
tive bargaining as a result of the different classes of
membership. Thus, article III of the BIA's bylaws pro-
vides as follows:
10. All Builder Members by virtue of becoming
members of this Association vest all bargaining
rights in collective bargaining matters with the
Board of Directors and designate the Board of Di-
rectors their attorney-in-fact for such purpose. The
Board of Directors in executing and carrying out
those functions referred to in this section may by
resolution authorize any committee to execute and
carry on such functions in their behalf, and the res-
olution appointing any such committee may specify
the plan and method to be used by such committee.
Further, the Association on its own behalf and on
behalf of its members may, through its duly author-
ized officers, when authorized to do so by a major-
ity vote of the Board of Directors, enter into collec-
tive bargaining agreements with labor unions whose
members are employed by Builder Members of the
Association. The Board shall have the power to in-
s Wesley Sizoo, the BIA's counsel, testified from his own recollection
that the mergers and accretions of area trade associations led to the birth
of the BIA in approximately 1970 and that the bylaws were adopted in
approximately 1971. The BIA's bylaws reflect that they were, in fact,
adopted in March 1974.
' Under art. V, sec. 11, of the BIA's bylaws, all builder members are
required to be members of NCHBC and that provision further provides
that NCHBC, "shall perform all labor relations and labor law services for
the [BIA]." In view of this provision, I find the Respondent's assertion at
the hearing that there was no evidence NCHBC was authorized to act in
labor relations matters on behalf of the BIA lacks merit. Accordingly, my
ruling denying the Respondent's attempt to amend its answer in this
repect at the conclusion of the hearing is hereby reaffirmed.
8 The other classes of membership are designed to accommodate sup-
pliers, decorators, banks and savings and loan institutions, government of-
ficials, and so forth Only representatives of the BIA's builder members
are permitted to hold office in the BIA.
PULLMAN N UILDINGN CMPANY 10()53
terpret and enforce collective bargaining agree-
ments entered into with labor unions on behalf of
Builder Members of the Association.
11. The Board of Directors may represent non-
Builder Members in negotiations with labor organi-
zations upon the execution of a power of attorney
agreement for this purpose. The fee for such serv-
ices shall be determined by the Board of Directors.
Membership by non-Builder Members shall not
automatically designate or appoint the Association
as their labor relations or collective bargaining rep-
resentative or agent.
There is no evidence that the Respondent ever execut-
ed a power of attorney to the BIA pursuant to article
111, section 11.9
The Respondent is licensed in the State of California
as a B-I contractor. The holders of such licenses are au-
thorized to engage in business for the purposes of con-
structing low rise buildings and residential structures. It
is undisputed that the Respondent has always been car-
ried on the membership lists of the BIA as a builder
member. Joseph Melchior, the BIA's current president,
also testified that any member of the BIA who holds a
B-l contractor's license must be either a building
member or a contributing member.' 0 There is no evi-
dence that the Respondent ever advised the BIA that the
BIA erroneously carried it on the membership lists as a
builder member or that it had altered its business oper-
ations in such a manner as to warrant reclassification
from a builder member to a land developer member. As
recently as October 1978, the BIA surveyed its builder
members to determine the operational names under
which its builder members were operating in order to be
able to respond to prospective home buyers who made
inquiries of the BIA asking for the names of builder
members who were building in specific areas. The Re-
spondent advised the BIA that it was building in the Ti-
buron-Marin area under the name of Paradise Cay Com-
pany. The same questionaire provided space for the re-
cipient to respond to the following inquiry:
In addition to building, we develop land under
the name(s) of:
That portion of the form inquiry submitted to the BIA
by the Respondent was left blank. Moreover, Kerwin
testified that the Respondent had been engaged in build-
ing residential structures at the Paradise Cay develop-
ment as late as 1975 when it used up all of the improved
lots in that subdivision which were not affected by the
water moratorium. I After the water moratorium was
lifted, the Respondent commenced to improve further
lots utilizing the services of a subcontractor. The only
evidence submitted in support of the Respondent's con-
tention that the BIA had erroneously carried it as a
9 In fact, the BIA represents no enterprise pursuant to an art. 11tt1, sec
I I, arrangement.
o The Respondent makes no claim that it is a contributing member
l More specifically. Kerwlin testified that the Respondent ceased
building homes for others in 1970 According to Kerrsin. the Respondent
has built homes for ils, oivn account during slo"ii period, after 17(1
builder member was Kcrwin's testimony that the Re-
spondent functioned basically as a land developer.
According to Kerwin, the Respondent employed one
operating engineer and three or four carpenters in the
course of its building activities in 1974 and 1975.12 Al-
though there is evidence that the Respondent applied the
terms of a collective-bargaining agreement to its lone op-
erating engineer during that period, no evidence was of-
fered to show whether or not the terms and conditions
of employment of the carpenter employees were covered
by any collective-bargaining agreement.
Kerwin testified that in December 1978 the Respond-
ent reached the conclusion that the cost of its BIA mem-
bership outweighed the benefits, so he instructed his sec-
retary to telephone the BIA to advise that the Respond-
ent was terminating its membership. The BIA continued
to bill the Respondent for dues. By letter dated May 15,
1979, Kerwin wrote the BIA returning a dues bill and
advising the BIA that it had not been a member since
December 31, 1978.'3 The secretary was not called to
testify.
D. The Pertinent Collective-Bargaining Activities
Wesley Sizoo, the legal counsel or NCHBC, testified
that he represents NCHBC in collective-bargaining nego-
tiations. According to Sizoo, NCHBC negotiates agree-
ments with the carpenters, laborers, cement masons, op-
erating engineers, and the construction teamsters. Tradi-
tionally, the homebuilders in the BIA employ very few
operating engineers. As a consequence, the NCHBC
agreement with the Operating Engineers is closely pat-
terned after the agreement that that labor organization
negotiates with the Associated General Contractors of
California (AGC) and the Engineering and Grading
Contractors Association (EGCA) and very little actual
negotiation takes place between the Union and
NCHBC. '4 Nevertheless, the NCHBC agreement with
the Union is entirely separate from the agreement the
Union has with the ACC and the EGCA.
It appears that following the formation of the BIA, the
first agreement between the NCHBC and the Union was
executed in July 1974 and was effective for the period
June 16, 1974, through June 15, 1977. The current agree-
ment (entitled Master Agreement for Northern California
and hereinafter called Master Agreement) between the
Union and the NCHBC was executed in March 1978 and
is effective for the period from June 16, 1977, through
12 It is acknowledged that the carpenters were engaged in honmebuild-
ing activities The operating engineer was utilized in connection uith
building foundations, laying water, sewer, gas, electric, telephione and
cable television lines from the street ito the indisidual homes, and per
forming maintenance work in the nature of that performed from mid-
1978 to mid-1
9
79
li In view of the cost-benefit explanation, Kerwin was asked w.h, the
Respondent had not resigned from the BIA much earher and, in re.
sponse, he testified that the Respondent had been in the BIA so long that
the bills were paid automatically without anyone looking at them The
BIA's records for the Respondent's 1977 and 1978 dues shows that the
dues for those years became severely delinquent before payment was
made
4 By contrast, the BIA builders empli approximatel 40,t(X) carpen-
ters As a consequence. the BIA. through Sioo. negotiates the arpen-
ter' agreement that serxes as the pattern for the arca
I'U1.1MAN BUIL.t)INC, (.'()NIPANY 053
1054 DI5C)EISIONS OF NATI()NAI. IAIB()R RELATIONS BOARD)
June 15, 1980. As previously noted, the parties agree that
the equipment utilized at the Paradise Cay jobsite in
1978-79 operations is the type of equipment normally op-
erated by employees who work under the Master Agree-
ment. Moreover, section 02.01.(X00 of the Master Agree-
ment defines its geographic coverage as being that por-
tion of Northern California lying above the northerly
boundaries of San Louis Obispo and Kern Counties and
the westerly boundaries of Inyo and Mono Counties.
Geographically, Paradise Cay is in the covered area. Fi-
nally, the Master Agreement provides the following
which is pertinent to the decision reached herein:
02.01.00 Employer. The term "Employer" as used
herein shall mean NORTHERN CALIFORNIA
HOME BUILDERS CONFERENCE.
02.02.00 Individual Employer. The term "Individual
Employer" shall mean those persons or entities, in-
cluding joint ventures, who are listed on Exhibit A,
on file with the Union. Exhibit A shall be prepared
by Northern California Home Builders Conference
and filed with the Union and shall list Individual
Employers. Northern California Home Builders
Conference shall file with the Union monthly a list
of the new members of the Association whose
names shall be added to Exhibit A subject to
02.02.01, applicants for membership and those
whose membership has terminated since the previ-
ous monthly report in the same form as Exhibit A.
The Union shall acknowledge receipt of Exhibit A
and monthly lists in writing.
incorporated into a job or project of an Individual
Employer so long as such material is actually bcing
produced or delivered to such job or project, pro-
vided, however, this Agreement shall not apply to
any such work if such work is covered by a sepa-
rate labor agreement with the Union.
02.11.01 The Union hereby recognizes and ac-
knowledges that Employer is the collective bargain-
ing representative of the Individual Employers
listed on Exhibit A.
02.11.02 This Agreement shall bind each and every
Individual Employer . . . who has authorized the
Employer to represent it with the same force and
effect as if the Agreement were entered into by
each such Individual Employer.... [E]ach such
Individual Employer shall be and continue to
remain bound to this Agreement for and during the
term of this Agreement irrespective of whether
such Individual Employer shall withdraw its au-
thorization, resign, or be expelled from the Employ-
er prior to the expiration date of this Agree-
ment.
02.11.03 Each Employer and each Individual Em-
ployer covered hereby recognizes and acknowl-
edges . . . [the Union] . . . as the exclusive collec-
tive bargaining representative of all Employees cov-
ered by this Agreement.
Exhibit A was never introduced in evidence. Accord-
ing to Sizoo a membership list is produced whenever the
Union makes a request for one. In addition, Sizoo testi-
fied that after the parties executed the Master Agree-
ment, the list of the building members of NCHBC was
provided to the Union. As it is the Union's responsibility
to have the agreement printed in final form, Sizoo was
not aware of what was done with the membership list.
The Respondent acknowledges that it has been bound
to a collective-bargaining agreement with the Union in
the past. In this connection, the Respondent produced a
"short form agreement executed by Charles Marsak on
behalf of the Employer and Wayne Prinkle on behalf of
the Union.' 5 This latter agreement recites that it was ex-
ecuted on August 1, 1974. Under the terms of this agree-
ment, an employer is bound to the master agreement be-
tween the Associated General Contractors and the
Union. According to Kerwin, officials of the Respondent
directed Marsak to execute the agreement. Marsak did
not testify. Kerwin testified that this agreement expired
in 1977 and was not renewed because the Respondent
employed no operating engineers at that time.
The fringe benefit programs under all of the Union's
agreements are administratively handled by the C. W.
Sweeney Company. For purposes of its recordkeeping
functions, Sweeney maintains a code number for each of
") Marsak was he Respondent' lone operating engineer at Paradise
Cay in 1974. According to the estirnons, Marsak retired alt he end of
1974
* * * * *
02.07.00 Unit Work. The Agreement shall cover
and apply to all activities of the Individual Employ-
er in the area covered by this Agreement falling
within the recognized jurisdiction of the Union, in-
cluding, but not limited by inference or otherwise,
to building construction, demolition, site clearing,
pipelines, oil or gas refineries (excluding the falling
and removal of merchantable timber by the pur-
chases of the merchantable timber) . . . Steel Fabri-
cators and Erectors . . . and . . . Piledriving. It
shall also apply to all maintenance, modification and
repair work and facilities, on-site or off-site, of an
Individual Employer in the area covered by this
Agreement, except an off-site repair or maintenance
facility with respect to which the Individual Em-
ployer is in a bona fide collective bargaining rela-
tionship with a labor organization covering such In-
dividual Employer's off-site maintenance and repair
facility at the time the Individual Employer be-
comes a party to, or covered by, this Agreement.
This Agreement shall also apply to the operation,
modification, maintenance, and repair of equipment
covered by this Agreement . . . used in the produc-
tion of imported borrow, rip-rap, rock, sand, gravel,
aggregates of all kinds, concrete (excluding
cement), asphalt or macadam or other road-surfac-
ing materials (excluding oil) off the site of a job or
project by an Individual Employer which is to be
P11,lN,1A~N BIL 1I.)1NN; CONIPANYSY 111s
the Union's numerous agreements. Based on the code
number appearing on billings received by the Respond-
ent for the period from January through July 1974, the
Respondent was billed by Sweeney pursuant to a short-
form Northern California individual agreement. Howei-
er, commencing in August 1974. the Respondent was
billed for fringe benefit payments pursuant to the Master
Agreement. In the period from August through Decem-
ber 1974, the Respondent paid fringe benefits pursuant to
Sweeney's billings on behalf of Marsak. Although billed
monthly thereafter, the Respondent returned the billing
through June 1979 showing that it employed no operat-
ing engineers. The returned billings in 1979 were signed
by the Respondent's corporate secretary.
Contention and Conclusions
The General Counsel contends in essence that the BIA
is a multiemployer association whose builder members
have voluntarily vested it with the authority to bargain
and enter into collective-bargaining agreements on their
behalf with respect to the wages, hours, and working
conditions of their employees in an appropriate unit, a
majority of whom have designated the Union as their ex-
clusive collective-bargaining representative. I find the
foregoing contention, which is essentially undisputed, to
be supported by substantial evidence in this record.
The General Counsel also contends that as the Re-
spondent was, at all times material hereto, a builder
member of the BIA, it had vested exclusive authority in
the BIA to bargain on its behalf; that the Respondent is
bound to the current Master Agreement: and that the
Respondent has refused to apply the terms and condi-
tions of the Master Agreement to the work performed by
the Respondent at Paradise Cay in 1978-79, and to fur-
nish the Union with requested information necessary to
police compliance with the agreement. both in violation
of Section 8(a)(1) and (5) of the Act. The Respondent
contends that the General Counsel has failed to prove
that the Respondent is bound to the current Master
Agreement because it failed to introduce into evidence
the contractual document known as Exhibit A, which
purports to show the individual employers who are
bound thereby. Moreever, the Respondent vigorously
contends that it is not a builder member of the BIA and,
even if it were, the work performed at Paradise Cay in
1978-79 was not subject to the Master Agreement.
The conclusion that the Respondent has failed to
apply the Master Agreement to the work performed at
Paradise Cay in the 1978-79 time period, when it re-
sumed operations there following the water moratorium,
is compelled by the evidence concerning Mosley's re-
sponse to Pahel in their April 2 conversation, the nega-
tive fringe benefit reports filed by the Respondent in that
time period, and the lack of any evidence that the Master
Agreement was applied to that work.17 Likewise, by
'" he parties stipulalted that !he unit covered h) the Master Agree-
ment is an approprialle unit DIuring the term (of the Master Agreement
the Union's majority siatus I, presumed
I7 I find that P'ahel, and thus he Union. was put on notice of possi-
hie unfair labor prctice as result f infirmation 'Pahel learned upon hi,
jobsite i it nII March 2') I tii t.. fir purp.s.es ,of coniputiig Ihe start f
the It(h) liniaitiol, peiod I Find March 2') to be the ippropri;ale daile
failing to enter an answ',er with respect to complaint
paragraph 10 concerning he refusal to furnish requested
and necessary information to the Union, the Respondent
has admitted the colnduct alleged. National Labor Rela-
tions Board Rules anlld Regulations. Series . as amended.
Section 102.2().
The Respondent's principal defense that it functions as
a land developer and, hence, that it has been erroneously
carried as a builder member on the membership rolls on
the BIA rests, in the final analysis, solely on the self-
serving testimony of Kerwin. The conclusion that the
Respondent was properly classified by the BIA as build-
er member is supported by the more persuasive testimo-
ny of Melchior that the BIA, which is specifically em-
powered by its bylaws to make the final judgment as to
admittance to membership, requires all members licensed
as B-I contractors in the State of California to be builder
members. This fact, when coupled with the acknowledg-
ment that the Respondent has in the past actually en-
gaged in homebuilding and was undertaking to perform
lot improvement work under subcontract in the 1978-79
period, also supports the conclusion that there neser was
anl error with respect to the Respondent's membership
status in the BIA. Moreover on the basis of the record
before me, it is reasonable to infer that the reason the
Respondent did not approach the BIA in 1978 when it
resumed its Paradise Cay operations for a change in its
membership status was because it knew such a claim
would be rejected, especially where, as here, the Re-
spondent was, and is, in a posture to engage in home-
building at anytime. It is also significant that the Re-
spondent did not resign from its BIA membership until
after it became evident that a dispute was developing
over its refusal to apply the Master Agreement to its
Paradise Cay %work. Moreover, there is no evidence
that the Respondent ever questioned the reason it contin-
ued to receive billing for fringe benefits after 1977, when
the alleged individual agreement expired. In considering
this question, I have rejected as totally incredible Ker-
win's testimonial assertion that he was not aware that the
Respondent's membership in the BIA would have the
effect of binding it to agreements the BIA made with the
Union. This assertion is belied by the length or time this
Respondent was a member of the BIA and its predeces-
sor multiemployer associations and the extent to which
the BIA routinely undertakes to keep its members in-
formed of developments in labor negotiations. Other e\i-
dence in this record strongly suggests that officials of the
Respondent were very conscious of the potential applica-
bility of the Master Agreement to the work the Re-
spondent was performing at Paradise Cay. Thus, by any
analysis, Mosley's April 2 jobsite conversation with
See. e g Donl Buree (irlstrul/lon (erporuirai. 227 NI.RB 7h (11077) liI
this circunllastnce, the harge wu, timel filed
t' Il the absence of tie asailable clrrhboratise otitliron\ (if he Re
spondentl s ecretar. I recect Kerni' leirstiloni;al .issertlon that the Re-
sponldent undertoolk Io resig n )ecemher 1978 Rather., I find the Re-
spondent made no aempl ih- resign its It A memhership untlil Kerwin'
Mam 15 letter "us sent to the BItA AlthIoulgh the R,pontlenist rcigrna
ioell does it reliesc it of ohligaltlons hlJ rnay otherss.le et under
the Master greenenl. it tf.ctie.l , lit te appropriate unit t,i the Re-
,ponden l ',t tr i emploees
t'L 1.1 MAN Itt. It .DIN( ; UsI I'.-\ NY P55
1(56 I)-'FCISIONS OF NATI()ONAL .A()OR RELATIONS H()OARD
Pahel shows that he was sufficiently conversant with the
Master Agreement to make the argument that the Re-
spondent was not bound to apply its terms on the basis
of the work being performed at that time as opposed to
its binding effect on the Respondent under any circum-
stances.
In view of the General Counsel's evidence concerning
the Respondent's building member status in the BIA, the
burden was shifted to the Respondent to go forward
with evidence to support its allegation that it functioned
as a land developer as that term is used in the BIA's
bylaws. Kerwin's general, self-serving assertions to that
effect are, in my view, insufficient to meet the burden
upon the Respondent. The critical evidence which is
lacking in the Respondent's defense is the BIA's conclu-
sion that the Respondent functioned as a land developer
as defined in its bylaws. Accordingly, I find that the Re-
spondent was a builder member of the BIA at all times
until it resigned from the BIA in May 1979. By virtue of
its status as a builder member of the BIA and by oper-
ation of Section 02.11.02 of the Master Agreement, I find
the Respondent is presently bound to the current Master
Agreement.
Having concluded that the Respondent has been a
builder member of the BIA at all material times, at least
two subsidiary conclusions follow as a logical result.
First, as a builder member, the Respondent became
bound to the Master Agreement by virtue of the oper-
ation of the bylaws of the BIA and not by virtue of their
inclusion on the listing designated as Exhibit A in the
contract. Although the introduction of Exhibit A, or at
least an explanation as to its absence, would have been
helpful if for no other reason than to avoid an issue with
respect thereto, I find, contrary to the Respondent's con-
tention, that its absence is not fatal to the General Coun-
sel's case. This is especially true where, as here, the pur-
pose which appears to be intended by the Exhibit A re-
quirement is to provide the Union with information as to
the identity of the builder members of the BIA on a
monthly basis, which information it is unlikely that the
Union would otherwise have. Secondly, to the extent
that the Respondent argues that it has in the past had a
separate agreement with the Union applicable to the
work which it performed at Paradise Cay in 1974-75,
such agreement would have been a nullity since, by
virtue of its membership in the BIA, the Respondent had
vested exclusive authority to bargain in the BIA and it
was, therefore, not at liberty to enter into a separate indi-
vidual agreement. 9
19 Entirely aside from this conclusion, there is considerable basis to be
skeptical that the document introduced as Resp. Exh. 2, the so-called in-
dividual agreement. was ever placed into effect. Thus, Resp Exh. 3 pur-
ports to be a letter, dated 7 days after the Respondent's representative.
Marsak, executed the individual agreement wherein an official of the
Union requested that the Respondent execute the same form agreement
Moreover, the Respondent's evidence relating to the contract number
contained on the fringe benefit billing refers only to the period from Jan-
uary through July 1974, which precedes the agreement executed by
Marsak. Sweeney's representative. Eagen, testified that commencing in
August 1974. and continuing thereafter. the contract code number on
fringe benefit billings to the Respondent was 37-the code number of the
Master Agreement. Marsak who retired at the end of 1974 was not called
to explain the circumstances surrounding his execution of the idividual
agreement, nor was any conlention made cncerninig his uavailabilit
Finally, I find that the Respondent's contention that
the work being perf'ormed in the 1978-79 time period
was not subject to the agreement to be without merit. It
is conceded that the Respondent's employees were en-
gaged in the operation of the type of equipment requir-
ing the same skills and training as is required of employ-
ees who are covered by the Master Agreement. In de-
scribing unit work the Master Agreement specifically al-
ludes to site clearing and maintenance work. Although it
may be true that the Respondent's own employees did
not perform the site improvement work in the 1978-79
period, the fact that the Respondent undertook to do
such work by any means is relevant in deciding whether
or not such work is unit work. The Master Agreement
regulates the practice of subcontracting and as the Re-
spondent was bound by the Master Agreement, if it was
obligated to follow the applicable rules concerning sub-
contracting. Moreover, there is a substantial similarity
between the some of the work performed by Marsak in
1974 and that which was performed in the 1978-79
period. In these circumstances, the Respondent's mere
assertion that the agreement was not applicable to the
work being performed is insufficient. The work being
performed at Paradise Cay in the 1978-79 period is not
analogous to the Sonoma County vineyard alluded to in
Respondent's brief. Instead, the work performed is rather
typical of work normally performed by homebuilders in
this industry.
Based on the foregoing and the entire record in this
matter, I find that the Respondent violated Section
8(a)(1) and (5) of the Act, as alleged. Authorized Air Con-
ditioning Co., 236 NLRB 131 (1978).
IV. THE EFFECT 01 THE UNFAIR I ABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section D,
above, occurring in connection with the operations of
the Respondent described in section A, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The BIA and its employer-members, including the
Respondent, are employers engaged in commerce or an
industry affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times material herein the NCHBC has been
an agent of the BIA within the meaning of Section 2(13)
of the Act, empowered to act as the exclusive repre-
sentative of the builder members of the BIA for the pur-
poses of engaging in collective bargaining and entering
into collective-bargaining agreements on behalf of the
employer-members of the BIA.
4. All operating engineers, apprentices, and helpers
employed by the Respondent in the geographic area
specified in the Master Agreement between the NCHBC
and the Union, excluding all other employees, office
PULLIMAN UILDING COMPANY 1057
clerical employees, timekeepers, messenger boys, inspec-
tors, confidential employees, guards, superintendents, as-
sistant superintendents, general foremen, foremen and su-
pervisors, as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. At all times material herein, the Union has been and
is now the exclusive representative of all employees in
the aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
6. By failing and refusing to give effect to the terms
and conditions of the existing Master Agreement be-
tween NCHBC and the Union with respect to work per-
formed at the Respondent's jobsite, known as Paradise
Cay, and by refusing to furnish the Union with the infor-
mation requested, in writing, on or about April 3, 1979,
which information is necessary in the performance of its
duties as the collective-bargaining representative of the
employees in the appropriate unit specified above in
paragraph 4, the Respondent has engaged in, and is con-
tinuing to engage in, unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that the Respond-
ent be ordered to cease and desist therefrom and from
any like or related unfair labor practices and take certain
affirmative action designed to effectuate the policies of
the Act.
As the Respondent has refused to give effect to the
Master Agreement with respect to the work it has per-
formed at the Paradise Cay jobsite, I shall recommend
that the Respondent be ordered to comply with said
agreement retroactively to the date 6 months prior to the
filing of the charge herein, and for the balance of its
term, including making employees whole for the losses
they incurred as the result of the Respondent's refusal to
abide by the terms of such agreement. 20 Similarly, the
Respondent shall be required to make the appropriate
trust funds whole for losses suffered during the same
period as a result of the Respondent's failure to adhere to
the Master Agreement. 21 Backpay and other moneys due
shall be computed in the manner specified in F. WU' Wool-
worth Company, 90 NLRB 289 (1950), together with in-
terest thereon as specified in Florida Steel Corporation,
231 NLRB 651 (1977). And see, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962). Finally, I shall
recommend that the Respondent be ordered to post the
attached notice marked "Appendix A" in order to fully
inform employees concerning this matter.
[Recommended Order omitted from publication.]
2n Ellis Tcke. d/b/a Ellis lacke Compan)y. 229 NLRH 129h (91'77)
Mosley's open admission on April 2 precludes a finding that the Re-
spondent deceitfully sought to hide the fact that it was not applying the
Master Agreement Accordingly. a remedy for an', prior period "sould
not he appropriate. Cf Burgess Constructrion. supra, fn 17
21 Liberrty C/earners, 227 NLRB 1296 (1977)
PULLMAN BUILDING COMPANY 057