Scandia Stucco Co.

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 850 (N.L.R.B. 1995)

850
319 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Member Browning finds it unnecessary to pass on the judge’s
discussion concerning the requirements for establishing the existence
of a ‘‘full’’ 9(a) collective-bargaining relationship in the construction
industry. Member Browning notes that the judge found, and all par-
ties concede, that Charging Party Lathers’ Local 190L was a ‘‘lim-
ited’’ 9(a) representative as sanctioned by Sec. 8(f) of the Act.
2 We shall modify the judge’s remedy and recommended Order to
provide standard remedial language for the violations found.
3 In addition to the make-whole requirements set forth in the rem-
edy section of the judge’s decision, the Respondent shall reimburse
unit employees for any expenses ensuing from its failure to make
contractually required payments to fringe benefit trust funds, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981). To the extent that an employee
has made personal contributions to a fund that are accepted by the
fund in lieu of the employer’s delinquent contributions during the
period of the delinquency, the Respondent will reimburse the em-
Scandia Stucco Co. and Wood, Wire and Metal
Lathers’ Local Union 190L, a/w United Broth-
erhood of Carpenters and Joiners of America,
AFL–CIO and Plasterers Union Local No. 20,
a/w Operative Plasterers and Cement Masons
International Association, AFL–CIO and Plas-
terers Union Local No. 65, a/w Operative Plas-
terers and Cement Masons International Asso-
ciation, AFL–CIO. Cases 18–CA–13033, 18–
CA–13084, and 18–CA–13086
November 30, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On May 22, 1995, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Scandia Stucco Co., White Bear Lake,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively in
good faith with the Wood, Wire and Metal Lathers’
Local Union 190L, affiliated with United Brotherhood
of Carpenters and Joiners of America, AFL–CIO
(Local 190L) as the exclusive representative of all
journeyman and apprentice lathers employed by the
Respondent during the term of any agreement with
Local 190L that is binding on it.
(b) Refusing to cooperate with agents of the Min-
nesota Wall and Ceiling Contractors Association
(MW&CCA) in processing grievances that are filed
with that Association in its capacity as the collective-
bargaining representative of the Respondent.
(c) Refusing to furnish Local 190L with information
necessary and relevant to its collective-bargaining du-
ties by refusing to permit a representative of Local
190L to inspect the Respondent’s payroll records in
order to determine compliance with the terms of the
collective-bargaining agreement between the
MW&CCA and Local 190L.
(d) Discharging or constructively discharging
employees in order to discourage their membership in
a labor organization.
(e) Telling its employees that it intends to, or has
become, nonunion at a time when it is lawfully obliged
to adhere to the terms of the collective-bargaining
agreement between MW&CCA and Local 190L.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Abide by the terms and conditions of the 1992-
1995 agreement between the MW&CCA and Local
190L, applicable to all employees employed in the unit
specified in paragraph 1(a) above, and any successor
agreement to which it is bound.
(b) Promptly cooperate with agents of the
MW&CCA in processing the grievance filed by Local
190L on March 8, 1994.
(c) Promptly permit a representative of Local 190L
to inspect its payroll records as requested on March 8,
1994, in order to determine the Respondent’s
compliance with the terms of the collective-bargaining
agreement between the MW&CCA and Local 190L.
(d) Offer Rick Sellman immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in
the remedy section of the decision.
(e) Remove from its files any reference to the un-
lawful discharge and notify Sellman in writing that it
has done so and that it will not use the discharge
against him in any way.
(f) Make whole all journeyman and apprentice lath-
ers in its employ at any time since December 1993 for
any loss of pay and benefits resulting from its repudi-
ation of the agreement between MW&CCA and Local
190L, in the manner set forth in the remedy section of
the decision.3
851SCANDIA STUCCO CO.
ployee, but the amount of such reimbursements will constitute a
setoff to the amount that the Respondent otherwise owes the fund.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its White Bear Lake, Minnesota facility
and its job sites copies of the attached notice marked
‘‘Appendix.’’4 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaints in
Cases 18–CA–13084 and 18–CA–13086 are dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain col-
lectively in good faith with the Wood, Wire and Metal
Lathers’ Local Union 190L, affiliated with United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO (Local 190L) as the exclusive representative
of all journeyman and apprentice lathers employed by
us during the term of any agreement with Local 190L
which is binding upon us.
WE WILL NOT refuse to cooperate with agents of the
Minnesota Wall and Ceiling Contractors Association
(MW&CCA) in processing grievances that are filed
with that association in its capacity as our collective-
bargaining representative.
WE WILL NOT refuse to furnish Local 190L with in-
formation necessary and relevant to its collective-bar-
gaining duties by refusing to permit a representative of
Local 190L to inspect our payroll records in order to
determine compliance with the terms of the collective-
bargaining agreement between the MW&CCA and
Local 190L.
WE WILL NOT discharge or constructively discharge
employees in order to discourage their membership in
a labor organization.
WE WILL NOT tell our employees that we intend to,
or have become, nonunion at a time when we are law-
fully obliged to adhere to the terms of the collective-
bargaining agreement between MW&CCA and Local
190L.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL abide by the terms and conditions of the
1992–1995 agreement between the MW&CCA and
Local 190L, and any successor agreement to which we
are bound, applicable to our journeyman and appren-
tice lathers.
WE WILL promptly cooperate with agents of the
MW&CCA in processing the grievance filed by Local
190L on March 8, 1994.
WE WILL promptly permit a representative of Local
190L to inspect our payroll records as requested on
March 8, 1994, in order to determine our compliance
with the terms of the collective-bargaining agreement
between the MW&CCA and Local 190L.
WE WILL offer Rick Sellman immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make him
whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against him, with
interest.
WE WILL remove from our files any reference to the
unlawful discharge and notify Rick Sellman in writing
that we have done so and that we will not use the dis-
charge against him in any way.
WE WILL make whole all journeyman and apprentice
lathers in our employ at any time since December
1993 for any loss of pay and benefits resulting from
our repudiation of the agreement between MW&CCA
and Local 190L, including losses to the trust funds es-
tablished on their behalf, with interest.
SCANDIA STUCCO CO.
James L. Fox, Esq., for the General Counsel.
Gregg J. Cavanagh, Esq. (Leonard, Street & Deinard), of
Minneapolis, Minnesota, for the Respondent.
Roger A. Jensen, Esq. (Peterson, Bell, Converse & Jensen),
of Minneapolis, Minnesota, for the Charging Parties.
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If not shown otherwise, all dates refer to the 1994 calendar year.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. The
General Counsel of the National Labor Relations Board
claims that Scandia Stucco Co. (Respondent or Company),
allegedly bound to three collective-bargaining agreements
through a multiemployer association, violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act by
repudiating those agreements in midterm, failing to furnish
information requested by one of the recognized employee
representatives, refusing to process a grievance filed under
one of the agreements, constructively discharging an em-
ployee who declined to work under terms other than those
provided in the agreement, and threatening employees that it
would be nonunion when they returned from a winter layoff.
The Wood, Wire and Metal Lathers’ Local Union 190L,
affiliated with United Brotherhood of Carpenters and Joiners
of America, AFL–CIO (Local 190L) filed the charge in Case
18–CA–13033 on March 8, 1994.1 Thereafter, Plasterers
Union Local No. 20 (Local 20) and Plasterers Union Local
No. 65 (Local 65), both affiliated with Operative Plasterers
and Cement Masons International Association, AFL–CIO,
filed the charges in Cases 18–CA–13084 and 18–CA–13086
on April 20 and 21, respectively. All three cases were con-
solidated and came before me pursuant to the consolidated
and amended complaint and notice of hearing issued on May
17, by the Regional Director for Region 18, acting on behalf
of the General Counsel. Respondent timely answered the
complaint by denying that it engaged in the unfair labor
practices alleged.
I heard this consolidated matter on June 23, 1994, at Min-
neapolis, Minnesota. After careful consideration of the
record, the witnesses’ demeanor while testifying, the briefs of
the General Counsel and Respondent, and the General Coun-
sel’s motion to dismiss, I find Respondent violated the Act,
as alleged, as to Local 190L but did not violate the Act as
to Locals 20 and 65 on the basis of the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Minnesota corporation with an office and
place of business in White Bear Lake, Minnesota, has been
engaged as a lathing and plastering contractor in the con-
struction industry doing residential and commercial work.
Respondent, in the course and conduct of its business, pro-
vided services valued in excess of $50,000 for enterprises
within the State of Minnesota, each of which annually pur-
chase and receive at their facilities located within the State
of Minnesota goods valued in excess of $50,000 directly
from suppliers located outside the State of Minnesota. Re-
spondent stipulated, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also find based on the record that at
all material times Local 190L is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Evidence
Although a corporation, Scandia is essentially a family
business. It was founded by Leonard Wojtowicz Sr. and his
sons, Nicholas (Nick) Wojtowicz and Leonard Wojtowicz Jr.
(Leonard Jr.) in 1975. Leonard Sr. retired in 1992. Since that
time the business has been operated by Nick, Leonard Jr.,
and their sibling, Guy. At the time of the hearing Nick
served as the Company’s chief executive officer, Leonard Jr.
served as its chief financial officer, and Guy as the corporate
secretary. Guy works primarily as a lather and job foreman.
Respondent, if currently bound to any collective-bargain-
ing agreements at all, is bound to those agreements nego-
tiated by the Minnesota Wall and Ceiling Contractors Asso-
ciation (MW&CCA). MW&CCA is a nonprofit organization
comprised of 11 contractor members (including Respondent)
and a number of associate members who are primarily indus-
try suppliers. MW&CCA engages in collective-bargaining
and contract-administration activities on behalf of its contrac-
tor members with five different labor organizations, three of
which are involved here. In addition, MW&CCA performs a
number of industry-promotion activities, and lobbies govern-
ment entities for its members and the industry in general. Its
activities are funded by annual membership dues as well as
monthly allocations from the promotion funds established by
its collective-bargaining agreements.
MW&CCA executes agreements on behalf of its members.
Contractors who are not MW&CCA members must execute
the agreements in their own name if they chose to adopt that
association’s contracts. William Grimm, the MW&CCA ex-
ecutive director, asserted that it is not possible to belong to
the MW&CCA as a contractor member without being rep-
resented by it for collective-bargaining purposes and that all
of its contractor members are bound by its labor agreements.
Grimm conceded, however, that MW&CCA has no written
authorization from Scandia specifically designating that asso-
ciation as its collective-bargaining representative even though
MW&CCA solicits such authorizations from its contractors
from time to time. Scandia officials acknowledged receipt of
those authorization forms over the years but assert that they
never executed those forms. If MW&CCA activities are con-
trolled by any organic documents, i.e., any incorporation arti-
cles or bylaws, those documents are not in evidence.
Everyone agrees that Leonard Sr. executed the 1978–1981
MW&CCA-Local 190L agreement on July 17, 1978, and that
Scandia was separately bound to that agreement until it ex-
pired on May 1, 1981. No Scandia official executed any
other labor agreement with any union thereafter. In 1979
Scandia became a MW&CCA contractor member after re-
ceiving at least two solicitations detailing MW&CCA’s func-
tions. Both documents reflect that one of MW&CCA’s pri-
mary services includes employer representation in collective
bargaining. Thus, one of those documents reads in pertinent
part:
The MW&CCA provides a number of important
services to its members and to the industry as a whole.
The MW&CCA is the employers collective bargain-
ing representative with three unions, the Minneapolis
Lathers, Plasterers and Plaster Tenders. It is this Asso-
ciation that strives to conduct reasonable contract nego-
853SCANDIA STUCCO CO.
2 Daniel Peltier, a Local 20 business representative, testified that
he telephoned Scandia after receiving notice that it requested to be
dropped from the fringe benefit rolls in November or December
1993. On this occasion, he spoke with Leonard Sr. and asked if
Scandia was going nonunion. Leonard Sr. told Peltier that he would
have to speak with Leonard Jr. about that matter but the elder
Wojtowicz did indicate that the Company was having difficulty com-
peting in the residential market.
3 The Local 20 agreement applies in the following Minnesota
counties: Ramsey, Dakota, Washington, Chisago, and parts of Anoka
and Pine Counties. The Local 65 agreement applies in these coun-
ties: Wright, Hennipen, Carver, Scott, Sibley, McLeod, Mille Lacs,
Kanabec, and parts of Anoka, Sherburne, and Isanti Counties.
tiations with these unions in order to keep lath and
plaster a competitively priced system in this area and
to provide long-term employment for our craftsmen.
. . . .
The MW&CCA provides management trustees for
jointly administered health and welfare and pension
trust funds and representatives to apprenticeship com-
mittees, grievance committees and the Promotion Bu-
reaus. These are important functions and provide all
contractors with a valuable service, whether MW&CCA
members or not. Responsible contractor representation
on these committees is essential for stable labor man-
agement relations and on-going industry promotion
throughout the year.
Both Nick and Leonard Jr. asserted, however, that Scandia
became a MW&CCA member solely to qualify for the exec-
utive health insurance plan it sponsors. Nevertheless, in Feb-
ruary 1981 when Local 190L notified MW&CCA that it
wanted to negotiate a new agreement, it requested ‘‘an up-
dated list of the parties that you represent.’’ A week later,
MW&CCA responded by letter enclosing its membership list
that included Scandia. That same MW&CCA letter also
promised that ‘‘[w]e will forward from time to time lists of
other contractors who will authorize MW&CCA to represent
them in negotiations. [Emphasis added.]’’ Leonard Sr., pre-
sumably Scandia’s chief executive officer throughout this pe-
riod, did not testify nor was his absence otherwise explained
apart from the fact that he is now retired.2
Insofar as this record shows, until the circumstances giving
rise to these cases Scandia paid its lathers in accord with the
wage and fringe benefit terms of all successor MW&CCA-
Local 190L agreements following the expiration of the 1978–
1981 agreement that it executed. In addition, what little evi-
dence there is shows that Respondent also paid its plasterers
in accord with the economic terms of the agreements Locals
20 and 65 negotiated with MW&CCA, or the predecessor as-
sociation in St. Paul that negotiated with Local 20. Grimm
testified that prior to March 1994 no Scandia official ever
claimed to him or, to his knowledge, any other MW&CCA
representative, that Scandia was not bound by the
MW&CCA labor agreements.
Both Nick and Leonard Jr. generally conceded that they
knew MW&CCA functioned as a multiemployer bargaining
representative and that MW&CCA regularly mailed notices
to Scandia concerning its collective-bargaining activities.
During and following the 1992 contract negotiations, these
mailings included general information concerning the status
of the ongoing negotiations, ‘‘payroll alerts’’ reflecting the
amounts and effective dates of the newly negotiated wage
and benefit rates, and followups providing the members with
copies of the complete agreement.
Rick Sellman, a Scandia lather from the fall of 1991 until
approximately February 1994, testified that he once over-
heard Leonard Sr. speak with a potential customer. During
the conversation, Leonard Sr. compared Scandia to a non-
union competitor and told the customer that Scandia hired
‘‘union men whereas this other company didn’t.’’ Leonard
Jr. acknowledged that Scandia generally held itself out, par-
ticularly in connection with soliciting commercial work from
general contractors, as a ‘‘union contractor.’’
Plasterers Local 20 permits members who enter business
as contractors to maintain their membership by paying a
‘‘contractor’s fee’’ rather than the regular membership dues.
Leonard Sr. maintained such a membership status during his
working years. When he retired, Randy Lindorff, then em-
ployed by Scandia as a plasterer, purportedly became a
‘‘partner’’ in the business to satisfy the licensing requirement
that the Company employ a licensed master plasterer. At that
time Leonard Jr. notified Local 20 that Scandia would be
paying Lindorff’s ‘‘contractor fees.’’ Additionally, in the
mid-1980s, a Local 190L business agent discovered Guy
working on a project with the tools of the trade and insisted
that he become a Local 190L member. Guy testified that he
finally joined that Union about a year and a half later when
his brothers selected him to run ‘‘an all-union project’’ asso-
ciated with the University of Minnesota. He continued his
membership until 1994.
Scandia officials also acknowledged that the Unions in-
volved here referred employees for employment with the
Company from time to time. Additionally, in 1989, Nick re-
quested that Local 190L provide the Company with a letter
concerning the availability, through that Union, of minority
workers for employment on a project governed by certain af-
firmative action regulations.
Over the years, none of the Scandia officials who testified
attended any MW&CCA meetings for the purpose of formu-
lating bargaining strategy or attended bargaining sessions in-
volving the MW&CCA and these three unions. Scandia offi-
cials acknowledged that they attended some of the
MW&CCA social functions over the years but conceded that
they never made any attempt to disclose their limited mem-
bership intentions to the other contractors also in attendance
at these functions.
At the time of the hearing, the MW&CCA agreement with
Local 190L was effective from May 1, 1992, through April
30, 1995. The term of the current agreements between
MW&CCA and both Local 20 and Local 65 is from June 1,
1992, through May 31, 1995. The Local 20 and Local 65
agreements are geographically specific.3 The recognition arti-
cle in the Local 190L agreement provides that MW&CCA
‘‘is hereby recognized as the exclusive bargaining representa-
tive to all members of the MW&CCA bound by this working
agreement and said association is further recognized as the
exclusive body to select employer representatives to serve on
any board or trust created under the working agreement.’’
The following provision (quoted from the Local 20 agree-
ment) is substantively identical in the current Local 20 and
Local 65 agreements.
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 These documents reflect that Scandia did not submit contribu-
tions for the ‘‘promotion’’ fund that is used in part to support the
activities of MW&CCA. Leonard Jr. testified that he once tele-
phoned Wilson-McShane’s office to advise that he was not going to
pay the promotion fund contribution but the record does not indicate
the reason Scandia never made such payments.
5 Respondent does not specifically deny that the discussions about
going nonunion took place. Rather, Respondent, in its brief, contends
that the phrase ‘‘going non-union’’ referred to the company’s transi-
tion from a ‘‘union’’ to a ‘‘non-union’’ compensation scheme.
6 Leonard Jr. initially denied talking to Bahr about his resignation
from Local 190L. He subsequently admitted, however, recommend-
ing Respondent’s law firm to represent Bahr and admitted that he
was present with Bahr at the attorney’s office. Bahr did not testify.
Article I
Designation of Parties
Agreement executed in triplicate and effective this
1st day of May, 1992 by and between [MW&CCA] as
Attorney-in-Fact for and on behalf of all duly licensed
or Active Master Plasterers & Lathers . . . jointly and
severally, who have or may hereafter authorize the said
Association, in writing, to negotiate and execute this
Agreement, party of the first part, hereinafter called the
Employers, and [Local 20] for and on behalf of its
members, jointly and severally, and all those persons
who hereafter may become members of said Union,
party of the second part, hereinafter called the Employ-
ees.
For the past few years, Scandia submitted fringe benefit
contributions on behalf of its employees to Wilson-McShane
Corporation, a fringe benefit trust fund administrator for
Local 190L and Local 65 agreements. Scandia’s fringe bene-
fit trust payments under the Local 20 agreement were made
to Zenith Administrators that administered the trust plans es-
tablished under the Local 20 agreement.
William Fitzgerald, an auditor with Wilson-McShane, tes-
tified that an employer must be signed to a collective-bar-
gaining agreement in order to make contributions to the
fringe benefit funds it administers. Fitzgerald further asserted
that if his Company cannot establish that an employer who
submits contributions is a signatory to an agreement, ‘‘we
couldn’t accept it [the contribution] under law and we’d re-
fund the money.’’ Reports are in evidence reflecting
Scandia’s contributions to Wilson-McShane from 1991 until
November 1993.4 Guy acknowledged that the health plan
under the Local 190L trust paid a $40,000 medical benefit
for one of his family members.
In early June 1993, Local 190L Business Agent John Orr
requested Wilson-McShane to audit Scandia. Pursuant to this
request Fitzgerald contacted Leonard Jr. for the purpose of
inspecting Scandia’s books and records. During the course of
their meeting (which actually occurred in the fall of 1994),
Leonard Jr. told Fitzgerald that the ‘‘Union was for shit’’
and that ‘‘as of November 1993 [Scandia was] going non-
union’’ because the wages and fringe benefits were too high
for it to compete. During Fitzgerald’s audit Leonard Jr. al-
lowed an inspection of the 1991 and 1992 records but re-
fused to provide 1993 records because, as Leonard Jr. put it,
‘‘I felt we had no agreement with them anyways, it wasn’t
required to give them any information.’’ Scandia’s December
1993 fringe fund report to Wilson-McShane reflects that it
was a ‘‘final report.’’ Since that time it has made no con-
tributions to the fringe benefit funds.
Sellman testified that near the end of the season in late
1993 several conversations occurred involving the three
Wojtowicz brothers, lather Tom Bahr, and himself about
‘‘going non-union’’ when work resumed the following
spring. According to Sellman, ‘‘pretty much all of them’’
stated that ‘‘they might be going non-union in the spring’’
and stated that Sellman would be nonunion as well.5 Guy
testified that he and his two brothers met separately with at
least three employees (Sellman, Bahr, and plasterer Dean
Thompson) at the end of the 1993 season to explain the
terms of a ‘‘package deal,’’ which would be available at the
start of the 1994 construction season. This offer included a
salary comparable to the union wage rate and different fringe
benefits including new health insurance and pension plans.
From time to time during the winter layoff Sellman
stopped at Scandia’s warehouse for information about the re-
sumption of work. At the time work was ready to resume
(apparently sometime in February or early March), the
Wojtowiczs explained to Sellman and Bahr that they would
be paid ‘‘non-union’’ wages and fringe benefits. The morn-
ing following this conversation Sellman went to the ware-
house and told the Wojtowiczs and Bahr that ‘‘I changed my
mind and decided to stay with the Union.’’ Thereafter, he
collected his personal tools and left. Guy recalled that
Sellman first acted ‘‘just like he normally does’’ that morn-
ing but after a short while he seemed to break down. When
Guy asked what was wrong, Sellman stated, ‘‘Well, I’m
sorry guys, but I can’t stay with you guys.’’ Guy claims that
Sellman mentioned some family problems but ‘‘he didn’t
really get into much more detail than that.’’
At the beginning of the 1994 construction season, Thomp-
son resigned from Local 65. By letter dated February 24,
1994, Bahr resigned his membership in Local 190L. The fol-
lowing day Orr wrote to Bahr requesting that he appear be-
fore the Local 190L executive board ‘‘as there are some con-
ditions and circumstances that you may not be aware of.’’
Timothy Schupp, an attorney who admittedly represents
Scandia concerning its business affairs, responded to Orr on
March 1 advising that he had been retained by Bahr ‘‘in con-
nection with his resignation’’ from Local 190L and that Bahr
‘‘respectfully declines your invitation’’ to attend the union’s
executive board meeting.6
During his examination by the Charging Parties’ counsel,
Sellman claimed that he had been told by some unspecified
individual that he ‘‘wouldn’t be able to [continue to work
with Scandia] if [he] continued with the Union.’’ On cross-
examination, however, Sellman admitted that no one from
Scandia ever told him that he would have to resign from the
Union in order to work there but he asserted that he did not
know that he could continue his Local 190L membership and
still work at Scandia. The Wojtowiczs denied telling their
employees that they would be required to resign their union
memberships in order to work for Scandia.
On March 8, Orr sent a letter to Respondent asking for ac-
cess to Scandia’s payroll records for inspection by a Local
190L representative in order to ascertain compliance with the
MW&CCA-Local 190L agreement. Scandia officials did not
respond to this request. Orr also filed a grievance with
855SCANDIA STUCCO CO.
MW&CCA on March 8 charging Scandia with violations of
several contract articles, including the wage and fringe bene-
fit provisions.
Grimm telephoned Nick concerning the grievance. During
their conversation, Nick took the position that Scandia was
not bound by the MW&CCA-Local 190L agreement. Grimm
attempted to convince Nick ‘‘that withdrawing from a labor
agreement was technical in nature, and certain steps had to
be followed’’ but terminated their conversation and action on
this grievance after Nick told Grimm that Scandia was al-
ready represented by an attorney.
B. Further Findings and Conclusions
1. The 8(a)(5) allegations
Section 8(a)(5) provides that it is an unfair labor practice
for an employer ‘‘to refuse to bargain collectively with the
representatives of his employees, subject to the provisions of
section 9(a).’’ Section 8(d) defines the obligation to bargain
collectively to require that no party to a contract ‘‘shall ter-
minate or modify such contract, unless the party desiring
such termination or modification . . . continues in full force
and effect . . . all the terms and conditions of the existing
contract for a period of 60 days [following a notice the Fed-
eral Mediation and Conciliation Service] or until the expira-
tion date of such contract, which ever occurs later.’’
Section 9(a) provides that ‘‘[r]epresentatives designated or
selected for purposes of collective bargaining by the majority
of the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the employees in
such unit.’’ Ordinarily, it is an unfair labor practice for an
employer and a labor organization to enter into a collective-
bargaining agreement in which the union is recognized as the
exclusive collective-bargaining representative when its major-
ity standing among the unit employees has not been estab-
lished. Garment Workers Union v. NLRB, 366 U.S. 731
(1961). Section 8(f), however, insulates employers primarily
engaged in the building and construction industry and labor
organizations from an unfair labor practice finding when they
‘‘make an agreement covering employees engaged (or who,
upon their employment, will be engaged) in the building and
construction industry . . . because (1) the majority status of
such labor organization has not been established under the
provisions of section 9.’’
In the construction industry, collective-bargaining agree-
ments are presumed to be prehire agreements sanctioned by
Section 8(f) unless the party asserting the existence of a full
9(a) relationship affirmatively proves such a relationship was
established either through a Board-conducted representation
election, or the recognition of the union by the employer
based on a ‘‘contemporaneous showing of union support
among a majority of the employees in an appropriate unit,’’
i.e., usually authorization cards or petitions signed by em-
ployees specifically authorizing the recognized union to rep-
resent them. J & R Tile, 291 NLRB 1034 (1988).
If an employer enters into an 8(f) agreement with a labor
organization, or otherwise becomes bound to such an agree-
ment, it is ordinarily precluded by Section 8(a)(5) from repu-
diating that agreement during its term. John Deklewa &
Sons, 282 NLRB 1385 (1987). As Deklewa bestows a ‘‘lim-
ited 9(a)’’ status on the 8(f) employee representative in order
to trigger the 8(a)(5) enforcement mechanism, that status re-
quires the representative to function as the exclusive rep-
resentative of all employees in an appropriate unit. Accord-
ingly, agreements limited to ‘‘members only’’ fail to meet
that fundamental statutory predicate and, hence, they are un-
enforceable under Section 8(a)(5). Don Mendenhall, Inc., 194
NLRB 1109 (1972).
When an employer expressly vests a joint bargaining rep-
resentative with authority to bind it in future negotiations or,
by its course of conduct, unequivocally manifests a desire to
be bound in future collective bargaining by group rather than
individual action, the Board deems the employer to be a
member of the multiemployer group. Taylor Motors, 241
NLRB 711 (1979); Greenhoot, Inc., 205 NLRB 250 (1973).
Employer intent to be bound by group action need not be
manifested by a written authorization. See Kroger Co., 148
NLRB 569, 571 (1964) (Board held employer bound to mul-
tiemployer agreement based on 15-year bargaining history
even though no formalized multiemployer association ex-
isted); Caamano Bros., 304 NLRB 24, 25 (1991) (employer
bound by multiemployer agreement when all other associa-
tion members were represented for collective-bargaining pur-
poses and employer failed to indicate that it did not want to
be so represented).
The General Counsel contends that Scandia is bound to
the latest agreement between MW&CCA and Local 190L by
virtue of its long-term membership in that association, its
awareness that MW&CCA acted as the collective-bargaining
representative for its members, and its historical compliance
with the MW&CCA labor agreements. Accordingly, General
Counsel argues that Respondent violated Section 8(a)(5) by
repudiating the Local 190L agreement, by failing to provide
that union with the information requested on March 8, and
by refusing to process the March 8 grievance. The General
Counsel, however, now moves to dismiss the complaint alle-
gations charging that Respondent unlawfully repudiated the
Local 20 and Local 65 agreements citing the Board’s deci-
sion in Stack Electric, 290 NLRB 575 (1988), and the trust
administrators’ records reflecting that Respondent did not
have any employees in the Local 20 unit and only one em-
ployee in the Local 65 unit.
Respondent argues that it is not bound by the MW&CCA
agreements with any of the Charging Parties because it has
never authorized the MW&CCA to bargain on its behalf and
it has never separately executed agreements with the Charg-
ing Parties other than the long-expired agreement with Local
190L. As for its MW&CCA membership, Respondent con-
tends that it joined that group merely to obtain its group
health benefit plan for its officers and that it contributed to
the Charging Parties’ fringe benefit trusts not because it was
contractually bound to do so but because a number of its em-
ployees were union members who desired the Unions’ bene-
fits that were reasonable and met their employees’ needs. Be-
cause it was not bound to any agreement with the Charging
Parties, Respondent asserts that as it had no obligation to fur-
nish the requested information or process grievances. Re-
spondent makes no contention based on the Stack Electric
theory.
No party attempted to establish that Scandia had a ‘‘full’’
9(a) relationship with any of the Unions involved here; on
the contrary, the General Counsel’s complaint concedes that
a ‘‘limited 9(a)’’ relationship existed in all three instances at
issue here. Likewise, no claim is made that Scandia ever en-
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tered into separate agreements in its own name with any of
the three involved unions following the 1978–1981 agree-
ment with Local 190L.
Based on the principles detailed above, however, I find
that the General Counsel established that Respondent is
bound to the current MW&CCA-Local 190L agreement
based on its MW&CCA membership and prior conduct but
failed to establish that Respondent is bound to the current
Local 20 and Local 65 agreements with MW&CCA. More-
over, even if it is assumed that Respondent is bound by the
Local 20 and Local 65 agreements, I find those agreements
are not enforceable under Section 8(a)(5) as they are, by
their terms, member-only agreements.
As for the Local 190L agreement, I find Respondent mani-
fested the requisite intent to be bound by group action for
collective-bargaining purposes through its membership in the
MW&CCA and its conduct from 1979 until November 1993.
This finding is predicated on the following significant fac-
tors: First, Respondent entered into a separate agreement
with Local 190L in 1978 and, although it entered into no fur-
ther separate agreements, it maintained the appearance of an
unbroken bargaining relationship with that union by joining
the MW&CCA, continuing to employ Local 190L members,
and paying them in accord with that union’s agreements with
the MW&CCA for 12 years after its separate agreement ex-
pired. Second, Respondent joined the MW&CCA as a con-
tractor member prior to the expiration of its separate agree-
ment with Local 190L with knowledge that collective-bar-
gaining representation was a principal service offered by that
association. Third, despite its present, self-serving contention
that it joined the MW&CCA merely for its executive health
plan, no evidence was adduced that it ever put the
MW&CCA on notice that its membership was limited in any
fashion. Fourth, the essence of Grimm’s testimony strongly
suggests that the MW&CCA would not have accepted Re-
spondent as a contractor member without authority to bargain
on behalf of Respondent and the fact that the MW&CCA
maintains a separate membership category for suppliers that
it does not represent for collective-bargaining purposes lends
credence to his assertion on this point. Fifth, Respondent’s
officials attended MW&CCA social functions over the years
and admittedly remained silent on these occasions with re-
spect to its purportedly limited membership intentions around
other members who very obviously had a important stake in
uniform labor costs. Sixth, Respondent’s officials held them-
selves out as a ‘‘union’’ contractor to customers and, more
importantly, to general contractors from whom it sought
work. Seventh, Respondent adhered to the wage, benefit, and
union-security provisions of the MW&CCA agreements, and
utilized those unions as a source for skilled labor that it
knew, or should have known, would lead both its employees
and their representatives to believe that Respondent regarded
itself as bound by the MW&CCA-negotiated agreements.
And eighth, the Respondent’s ‘‘non-union’’ statements com-
mencing in November 1993 strongly suggests that its offi-
cials recognized that they had previously adhered to the
‘‘union’’ terms, which in this case could only have been es-
tablished through group bargaining. Considered together,
these factors clearly demonstrate Respondent’s intent begin-
ning in 1979 to be bound in collective bargaining by group
rather than individual action.
Respondent contends, however, that an employer’s objec-
tive intent to be bound by group action ‘‘must be manifest
by express delegation to the association’s bargaining arm or
by participation in the group bargaining process.’’ Respond-
ent cites several cases in which the Board and the courts
have relied on those indicia in reaching a conclusion that an
employer was or was not bound by group action. In particu-
lar, Respondent emphasizes Shearson Environmental Design
Co. v. Laborers’ District Council, 144 LRRM 2770 (E.D. Pa.
1993).
This argument by Respondent fundamentally fashions a
new and unsupported legal standard for cases of this nature
from ultimate factual conclusions in selected cases. The fal-
lacy of this approach is evident from Caamano Bros., supra,
in which the Board found the employer bound by group ac-
tion in the absence of any ‘‘express’’ delegation or participa-
tion in group bargaining. Moreover, Shearson is plainly dis-
tinguishable on its facts. Thus, even though that employer
was a member of an association, which engaged in collec-
tive-bargaining activities on behalf of its members, there was
no evidence that it had ever employed represented employ-
ees, paid its employees or otherwise applied the terms of the
association agreement, received notices of any kind concern-
ing the association’s bargaining activities, or held itself out
as a ‘‘union’’ contractor.
Although it is true that Respondent apparently never exe-
cuted a written authorization for MW&CCA to bargain on its
behalf, I do not find that controlling at least as to Local
190L. Thus, Section 2(13) specifically provides that neither
actual authorization nor subsequent ratification controls the
determination as to whether ‘‘any person is acting as an
‘agent’ of another person.’’ In my judgment, the eight factors
I have enumerated above reasonably imply Respondent au-
thorized MW&CCA to act as it collective-bargaining rep-
resentative. Restatement 2d Agency 26, (1958). At the very
least, those factors strongly support a finding that the
MW&CCA had the apparent authority to bind Respondent.
Restatement 2d Agency 27 (1958). To hold otherwise would
effectively countenance the hoodwinking of numerous parties
with substantial interests at stake including MW&CCA offi-
cials and other contractor members of that association, the
employees and unions involved, the trust funds, Respond-
ent’s customers, and the general contractors with whom Re-
spondent does business.
Having concluded that Respondent was bound by the
MW&CCA-Local 190L agreement, I find Respondent vio-
lated Section 8(a)(1) and (5) by repudiating that agreement
effective at the start of the 1994 construction season, includ-
ing its failure or refusal to pay the wages and benefits speci-
fied therein, and its failure to cooperate with Grimm in the
processing of the March 8 grievance filed by Local 190L
under the contractual grievance procedure. John Deklewa &
Sons, supra. In reaching this conclusion, I reject Respond-
ent’s contention that it merely breached the agreement and
did not unlawfully repudiate it. The evidence plainly shows
that Respondent devised a whole new employee compensa-
tion scheme to supplant the wage and benefit provisions of
the negotiated agreement. Such action is tantamount to un-
lawful repudiation. Oak Cliff-Golman Baking Co., 207 NLRB
1063 (1973). I further find that the information requested by
Orr’s March 8 letter is presumptively relevant to Local
190L’s performance of its duties as the collective-bargaining
857SCANDIA STUCCO CO.
7 I note that this contractual written authorization requirement ap-
pears to explain the purpose of the authorization forms that the
MW&CCA sent to members from time to time.
8 In view of these conclusions, I find it unnecessary to rely on the
Stack Electric theory proposed by the General Counsel. Indeed, I am
not satisfied that the evidence is sufficiently reliable to apply Stack
Electric. Although Respondent’s trust fund reports, relied on by the
General Counsel for this motion, reflect no employees in the Local
20 unit for a considerable period and only one employee in the
Local 65 unit for an equal period, Fitzgerald’s uncompleted audit de-
tracts considerably from the reliability of those reports especially
when, as here, Leonard Jr.’s testimony reflects that the Company
employed 22 employees at the time of the hearing. Even assuming
those 22 employees include the three owners and two part-time cleri-
cal employees as implied, the unit placement of the other 17 em-
ployees remains unknown.
representative and that Respondent’s failure to make that in-
formation available for inspection as requested also violated
Section 8(a)(1) and (5). Woodworkers v. NLRB, 263 F.2d
483 (D.C. Cir. 1959).
Notwithstanding my conclusion that Respondent unequivo-
cally manifested a desire to be bound group rather than indi-
vidual action, the MW&CCA agreements with Local 20 and
Local 65—unlike its agreement with Local 190L—specifi-
cally requires that employers must authorize MW&CCA in
writing to negotiate and execute those agreements on their
behalf. In my judgment, this specific language supplants the
ordinary standard and the Board is not at liberty to ignore
it. H. K. Porter v. NLRB, 397 U.S. 99 (1970) As there is no
evidence that Respondent provided the requisite authorization
to MW&CCA, I have concluded that the General Counsel
has failed to prove that Respondent is bound by those agree-
ments.7 See Adobe Walls, 305 NLRB 25 (1991). Moreover,
as both the Local 20 and Local 65 agreements define em-
ployees as ‘‘members’’ of those respective labor organiza-
tions, I find these member-only agreements are not enforce-
able under Section 8(a)(5) in any event. Don Mendenhall,
Inc., supra. Accordingly, I will recommend dismissal of the
Local 20 and Local 65 cases in their entirety.8
2. The independent 8(a)(1) and (3) allegations
Section 8(a)(1) provides that it is an unfair labor practice
for an employer to ‘‘interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in Section
7.’’ Section 7 guarantees employees the right to ‘‘self-organi-
zation, to form, join or assist labor organizations, [and] to
bargain collectively through representatives of their own
choosing.’’ Section 8(a)(3) provides that it is an unfair labor
practice for an employer to discriminate against employees
‘‘to encourage or discourage membership in any labor orga-
nization.’’
Section 8(a)(1) prohibits employer statements that interfere
with guaranteed employee rights. The test for determining
whether employer conduct violates Section 8(a)(1) does not
depend on the intent of the speaker, but instead on whether
the statement ‘‘has the tendency to interfere with, restrain, or
coerce the employees in the exercise of Section 7 rights.’’
Cox Fire Protection, 308 NLRB 793 (1992).
An employer may also violate Section 8(a)(3) under a the-
ory of constructive discharge by presenting its employees
with the ‘‘Hobson’s choice of resignation or continued em-
ployment conditioned on the relinquishment of rights guaran-
teed by Section 7 of the Act.’’ White-Evans Service Co., 285
NLRB 81 (1987).
The General Counsel asserts that Respondent unlawfully
threatened employees by telling them that it was going
‘‘non-union’’ and that they would be nonunion also. Finally,
the General Counsel contends that Respondent constructively
discharged Sellman. Respondent argues that it engaged in no
coercive conduct. Instead, it claims that Sellman voluntarily
quit his employment and that it did not coerce employees to
resign their membership in order to continue their employ-
ment in 1994.
I find that statements by Respondent’s officials to Sellman
that Scandia was going nonunion and that he would also be
nonunion had a reasonable tendency to interfere with and re-
strain Sellman’s exercise of his rights under the Act espe-
cially in light of the context in which they were made.
Sellman was a 15-year member of Local 190L. So long as
Scandia honored the contract to which it was bound with
Local 190L, Sellman could expect to continue his employ-
ment and enjoy the benefits of representation by that Union.
By announcing its intention of going ‘‘non-union,’’ Respond-
ent necessarily put Sellman in the position of abandoning ei-
ther his job, his union membership, or any expectation of
representation his membership and work under a union
agreement might imply. The conclusion that such talk was so
construed is supported by the fact that two similarly situated
employees—Bahr and Thompson—both resigned their union
memberships in their respective local unions and continued
to work for Scandia. Hence, I find that Respondent violated
Section 8(a)(1) of the Act by its ‘‘non-union’’ statements to
its employees.
In its brief, Respondent concedes that Sellman quit his em-
ployment with Respondent because it decided to ‘‘adopt its
own compensation package.’’ As previously found, Respond-
ent is mistaken in its view that these changes were lawful.
Therefore, it begs the question to argue that Sellman quit his
employment as he had no other choice if he desired to work
under the union agreement. Accordingly, I find that Sellman
was constructively discharged by the Respondent in violation
of Section 8(a)(1) and (3). White-Evans Service Co., supra.
Contrary to the assumption in Respondent’s argument, it is
of no moment whether or not any of Respondent’s officials
insisted that Sellman resign his membership in order to con-
tinue his employment in 1994.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 20, Local 65, and Local 190L are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent is bound to the collective-bargaining agree-
ment that MW&CCA entered into with the MW&CCA and
Local 190L.
4. Respondent is not bound to the collective-bargaining
agreements entered into between Locals 20 and 65.
5. Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act in or about No-
vember 1993 and February 1994 by telling its employees that
it was going nonunion, and that they would be nonunion as
well.
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6. Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (3) of the Act by con-
structively discharging Rick Sellman in February 1994.
7. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act by repudiating
the collective-bargaining agreement between the MW&CCA
and Local 190L during its term, refusing to furnish Local
190L with information necessary and relevant to the dis-
charge of its collective-bargaining duties, and refusing to co-
operate with MW&CCA agents in processing the grievance
filed by Local 190L.
8. Respondent did not engage in an unfair labor practice
by repudiating the agreements between MW&CCA and
Locals 20 and 65.
9. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, Respondent will be ordered to cease and
desist therefrom and to take the following affirmative action
designed to effectuate the policies of the Act.
Respondent must promptly make available the information
requested by Orr in his March 8 letter. Respondent must also
abide by the terms of the MW&CCA agreement, and any
successor thereto during the term of that agreement and any
successor thereto binding on it. In addition, Respondent must
make all unit employees and trust funds established under the
Local 190L agreement whole for losses incurred as a result
of its repudiation of that agreement. Backpay for employees
employed by Respondent following its repudiation of the
Local 190L agreement shall be computed in accord with
Ogle Protection Service, 183 NLRB 682, 683 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest computed in the
manner set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987). Contributions to all benefit trust funds
is to be computed in accord with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979).
Respondent must immediately offer in writing to reinstate
Sellman to his former position or, if that position no longer
exists, to a substantially equivalent position and make
Sellman whole for the losses he incurred by reason of the
discrimination against him. Sellman’s backpay and benefits
shall be computed on a quarterly basis as provided in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as pro-
vided in New Horizons for the Retarded, supra. Trust fund
contributions due on Sellman’s behalf shall be computed in
accord with Merryweather Optical Co., supra.
Finally, Respondent must post the attached notice to in-
form employees of their rights and the outcome of this mat-
ter.
[Recommended omitted from publication.]