The Irvin-McKelvy Co.

National Labor Relations Board - Board Decisions

Nov 6, 1971

194 N.L.R.B. 52 (N.L.R.B. 1971)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David F. Irvin and James B. McKelvy, partners, d/b/a
The Irvin-McKelvy Company and International
Union of District 50, Allied and Technical Workers
of the United States and Canada 1 and United Mine
Workers of America,2 Party to the Contract. Case
6-CA-4659
November 6, 1971
DECISION AND ORDER*
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On February 19, 1970, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel, the Respondent, and the Party to
the Contract filed exceptions to the Trial Examiner's
Decision, together with supporting briefs. The Res-
pondent later filed a reply brief and the Party to the
Contract filed an answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings,3 conclusions, and recommendations of the
Trial Examiner, as herein modified.
The Respondent is in the business of building
preparation and material handling facilities for coal
mine operators in the bituminous coal mine fields,
and employs approximately 18 employees. These
employees were not represented for collective-bar-
gaining purposes by any labor organization prior to
June 1964. At that time it became necessary for
Respondent to recognize District 50 or the Mine
Workers in order to obtain work. Accordingly, in
1964, Respondent signed a collective-bargaining
agreement with District 50 covering Respondent's
construction employees. This contract contained a
union-security clause, and the Company also deduct-
ed dues from the employees and remitted them to
District 50. In October 1966 the same parties signed a
supplemental agreement which related solely to
* On June 1, 1972, the Board granted Respondent's Motion To Clarify
Order of the National Labor Relations Board and ordered that
By its Decision and Order , the Board intended that when the
Respondent, on any project, new or old, continues to use a work
complement constituting an appropriate unit of which a majority continues
to consist of members of District 50, the Respondent is not free to sign a
contract with the United Mine Workers of America, or any other labor
organization covering the said unit.
wages. On June 27, 1967, the parties adopted an
industrywide contract which had been negotiated and
executed between the Coal Mine Construction Con-
tractors Association, Inc. (herein called CMCCA),
and District 50, which was effective June 1, 1967, to
May 31, 1970. The contract, which covered the same
employees as the June 1964 agreement, also contained
a union-security clause and checkoff clause.
In late 1968 Respondent was advised by several of
its customers that in order to get their business the
work would have to be done with Mine Workers
labor. Thereupon the Respondent joined the Associa-
tion of Bituminous Contractors (herein called ABC),
and was thereby able to avail itself of an agreement
between ABC and the United Mine Workers negotiat-
ed on December 10, 1968, although Respondent's
contract with District 50 still had another year and 5
months to run.
Respondent's contract with District 50 contained a
"most favored nations" clause, which in effect stated
that if District 50 executed any contract or agreement
with any employer performing construction work in
coal mine lands and said contract was more favorable
in its provisions than any of the provisions contained
in the CMCCA-District 50 contract, which Respon-
dent had adopted, that any employer signatory to the
CMCCA contract may have identical provisions
inserted in its contract upon request and such
provisions shall immediately become in full force and
effect.
On October 29, 1968, District 50 entered into a
contract with Zeni-McKinney-Williams Corporation,
an employer-member of the CMCCA. That agree-
ment provided that the employer would become a
party to and abide by all the terms and provisions of
the CMCCA contract with District 50 except that it
was a "project agreement" rather than an agreement
running from June 1967 to May 31, 1970.
On December 9, - 1968, the general counsel of
CMCCA notified District 50 that it considered the
"project agreement" provision of the Zeni-McKin-
ney-Williams contract to be more favorable than the
fixed term provision in the CMCCA contract and
that, pursuant to the "most favored nations" clause
the existing agreement was binding on the employer
members only for the period of time required for the
construction of the particular project presently being
worked on. On December 27, 1968, the president of
District 50 disagreed with the CMCCA interpretation
i Herein called District 50 The name of the Charging Party is hereby
corrected in the caption and wherever it appears to conform to its
constitutional change of name.
2 Herein called Mine Workers
3 The Respondent and the Party to the Contract have requested oral
argument. This request is hereby denied because the record, the exceptions,
and the briefs adequately present the issues and positions of the parties.
194 NLRB No. 8
THE IRVIN-Mc KELVY COMPANY 53
of the said "most favored nations" clause and said
that the CMCCA contract should remain in full force
and effect until its expiration on May 31, 1970.
However, the general counsel of CMCCA thereafter
informed the Respondent that after completion of
each project on which it was then working, it would be
free to apply the contract which had been negotiated
between ABC and the Mine Workers.
As Respondent had three or four different jobs
going it decided to commence recognition of the Mine
Workers on April 1, when essentially all of the major
portions of any work that it was doing would be
terminated. After April 1, Respondent recognized the
Mine Workers as the collective-bargaining agent of its
construction employees, who were the same employ-
ees who had been previously covered by the District
50 contract, and applied the contract which had been
negotiated by ABC with the Mine Workers.
At issue here is whether Respondent violated
Section 8(a)(1), (2), (3), and (5) of the Act when, on or
after April 1, 1969, Respondent applied the provision
of a collective-bargaining agreement it had with the
United Mine Workers rather than a collective-bar-
gaining agreement it had with District 50.
Respondent contends that its contract with District
50 was illegal because District 50 was an illegally
assisted Union. It further contends that the contract
was not binding after March 31, 1969, the point at
which substantially all of Respondent's projects
started during the term of the contract were finished,
because of the invocation of the "most favored
nations" clause making the agreement a "project
agreement."
The Board is not in agreement with Respondent's
contention that District 50 was an illegally assisted
Union. Although District 50 did not show that it had
majority status at the time it executed any of its
contracts with Respondent, such contracts are specifi-
cally allowed in the construction industry by Section
8(f) of the Act. Therefore, the contract between
Respondent and District 50 was a lawful contract.
We find merit in Respondent's contention that the
invocation of the "most favored nations" clause after
District 50 entered into a "project only" agreement
with a competitor of Respondent caused its contract
with District 50 to become a project agreement.
Therefore, at the termination of each project on which
it was then working, it was free to terminate its
relationship with District 50.
Respondent was not, however, free to withdraw
recognition completely from District 50 on March 31,
1969, as not all projects were completed, and District
50 members were working on the incompleted
projects.
4 R. J. Smith Construction Co, Inc, 191 NLRB No. 135
5 Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533.
Although we have held that an 8(f) contract,
standing alone, creates no presumption of majority
status,4 in the instant case it is conceded that all of
Respondent's unit employees were members of
District 50 by virtue of compliance with the union-
security clause in the contract. Therefore, District 50
was still the representative of employees working on
projects which carried over after March 31 where
Distnct 50 had majority status, and Respondent was
thus obliged to negotiate with District 50 over the
employees on these projects. It was not free at those
projects to take any unilateral action with respect to
wages, hours, or conditions of employment or to
withdraw recognition and confer it on another union.
By its action on March 31, and thereafter, of ceasing
recognition altogether of District 50, and of recogniz-
ing the UMW as the representative of the employees
working on the projects not yet completed where
District 50 had majority status, Respondent violated
Section 8(a)(5) and 8(a)(2) of the Act. Further, it was
in violation of Section 8(a)(3) and (1) because of its
conduct in requiring employees on projects still in
progress to join the UMW as a condition of continued
employment.
The termination of the District 50 contract, howev-
er, did leave Respondent free to enter into genuine
prehire 8(f) agreements on any subsequent projects
with any union it wished, so long as it did not employ
at such projects a work force of which a majority were
District 50 members.
The General Counsel excepts to the Trial Examin-
er's refusal to reimburse the employees for dues,
initiation fees, and assessments which they were
required to pay to the Mine Workers pursuant to the
union-security and checkoff provisions of Respon-
dent's contract with this Union. We find merit in this
exception. Since Respondent unlawfully executed and
applied the Mine Workers agreement to projects
where District 50 had majority status employees on
these projects who were compelled thereunder to join
and maintain membership in such labor organization
as a condition of employment are entitled to reim-
bursement for moneys thus exacted from them.5
Employees who were already members of the Mine
Workers when employed by Respondent are not
entitled to this reimbursements Identification of
these employees shall be left for determination in the
compliance stages of this proceeding.
In view of our findings of fact and law herein, we
also find that the Recommended Order of the Trial
Examiner is in part inappropriate. We will therefore
order that Respondent take the appropriate action
necessary to bring it in compliance with our findings
herein.
6 Cowles Communications, Inc., 170 NLRB 1596, fn. 3.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
David F. Irvin and James B. McKelvy, Partners,
d/b/a The Irvin-McKelvy Company, Indiana, Penn-
sylvania, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with District 50 at any time
when that labor organization is lawfully entitled to
recognition on any of Respondent's projects.
(b) Assisting or contributing support to the Mine
Workers, or any other labor organization, on any
projects where District 50 is the lawful representative
of the employees.
(c) Giving effect to the contract with the Mine
Workers or any modification, renewal, or extension
thereof on any projects covered by Respondent's
contract with District 50.
(d) Requiring membership in the Mine Workers as a
condition of employment on any projects covered by
Respondent's contract with District 50, or in any
manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed by
Section 7 of the Act, except to the extent that such
rights may be affected by a valid contract requiring
membership in a labor organization as a condition of
employment.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from the
Mine Workers as the collective-bargaining represent-
ative of Respondent's employees who are working on
projects covered by the District 50 contract unless and
until such labor organization shall have been certified
by the National Labor Relations Board.
(b) Reimburse its employees working on projects
covered by the District 50 contract who were not
already - members of the Mine Workers for all
initiation fees, dues, and other moneys which they
were required to pay under the terms of the Mine
Workers union-security agreement applied subse-
quent to April 1, 1969.
(c) Continue to bargain with District 50 and to give
effect to and abide by its contract with District 50
until the completion of any projects covered by such
contract.
(d) Post at its premises in Indiana, Pennsylvania,
and at each of its projects copies of the attached
notice marked "Appendix." 7 Copies of said notice, on
forms provided by the Regional Director for Region
6, after being duly signed by Respondent's representa-
In the event that 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 be changed to read "Posted
tive, shall be posted by the 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that all allegations of the
complaint not specifically found to be in violation of
the Act be, and they hereby are, dismissed.
MEMBER FANNING, concurring in part and dissenting
in part:
I concur with the majority's findings of violations of
the Act, as far as they go. However, I would go further
and agree with the Trial Examiner that Respondent
was in violation of the Act on and after March 31,
1969, for ceasing recognition of District 50, recogniz-
ing the Mine Workers and applying the contract with
that Union, and causing its employees to join the
Mine Workers as a condition of employment. These
violations were present after March 31, not only on
projects where District 50 had majority status but on
any of Respondent's projects thereafter where Res-
pondent recognized the Mine Workers prior to the
proper termination date of its contract with District
50.
I am not in agreement with the majority conclusion
that, because of the invocation of the "most favored
nations" clause, Respondent was free to change its
long-term contract with District 50 to a "project
agreement" and cease relations-with District 50 upon
completion of each project. Rather, I agree with the
Trial Examiner's finding that the parties did not
intend at the time of the making of the agreement that
the "most favored nations" clause should be invoked
to shorten the term of the contract. Therefore, the
contract remained in full force and effect after March
31 and was so at the time Respondent extended
recognition to the Mine Workers.
Moreover, the evidence shows that the Respondent
herein has a substantially stable work force which had
for almost 5 years been represented by a labor
organization with which the Respondent had continu-
ous collective-bargaining agreements. In such an
instance, it is reasonable to infer that the employees
have vested interests in benefits and programs offered
by a union such as pension funds, insurance plans,
and numerous other supplemental benefits, which
interests are jeopardized, or least made much more
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board."
THE IRVIN-Mc KELVY COMPANY 55
costly for the employee, by the unilateral action of the
employer in ceasing recognition of that union and
recognizing another union as the collective-bargain-
ing representative ^ of these employees. Such action is
grossly unfair to these employees, and I cannot
conclude that Congress intended the application of
Section 8(f) to result in such a detrimental and
inequitable forefeiture of the rights and benefits
vested in employees by virtue of a contract authorized
by that section of the Act.
The majority states that Respondent is free to apply
any contract it wishes on any new projects, as long as
it does not employ a work force made up of a majority
of District 50 members. This is stated after finding
that Respondent's complete construction work force
was made up of District 50 members. It appears to me
that this conclusion by the majority leaves the
Respondent in a position whereby it can use the work
force it has had for years only if these employees
switch their union affiliation to the union recognized
by Respondent on that project. In other words, the
continued employment of the Respondent's employ-
ees would be conditioned on their repudiation of
membership in District 50 and acceptance of mem-
bership in the Mine Workers. Such action by the
Respondent of giving its work force such an alterna-
tive would appear on its face to be yet another
violation of Section 8(a)(3).
Based on all the foregoing and in accordance with
the dissent in R. J. Smith Construction Co., Inc., supra.,
I would find that the Respondent violated Section
8(a)(1), (2), (3), and (5) of the Act by failing and
refusing to apply the District 50 agreement after
March 31, 1969, and by executing and applying an
agreement with the Mine Workers, including a union-
security provision, on and after April 1, 1969.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and to keep our
word about what we say in this notice.
WE WILL withdraw and withhold recognition
from the United Mine Workers of America and
cease giving effect to the December 1968 contract
with that organization, or to any renewal or
extension thereof, on any of our projects which are
covered by our contract with International Union
of District 50, Allied and Technical Workers of the
United States and Canada, until such time as the
United Mine Workers of America shall have been
certified by the National Labor Relations Board.
WE WILL reimburse our employees working on
projects covered by the District 50 contract who
were not already members of the United Mine
Workers of America for all initiation fees, dues,
and other moneys which they were required to pay
under the terms of the Mine Workers union-
security agreement applied subsequent to April 1,
1969, with interest at the rate of 6 percent per
annum.
WE WILL NOT refuse to bargain with Interna-
tional Union of District 50, Allied and Technical
Workers of the United States and Canada, at any
time when it is lawfully entitled to recognition, and
WE WILL give effect to our contract with such
Union until its termination, or any extension
thereof.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or
assist International Union of District 50, Allied
and Technical Workers of the United States and
Canada, or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purposes of collective bargaining,
or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent
that such rights may be affected by a valid
agreement requiring membership in a labor
organization as a condition of employment con-
sistent with Section 8(a)(3) of the Act.
Dated By
DAVID F. IRVIN AND
JAMES B . MCKELVY,
PARTNERS , D/B/A THE
IRVIN-MCKELVY
COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted'for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1536 Federal Building, 1000 Liberty Avenue,
Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION III. THE UNFAIR LABOR PRACTICES
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This case was heard
before me in Pittsburgh, Pennsylvania, on December 18,
1969,1 upon a complaint and notice of hearing, dated
November 18, issued by the General Counsel of the
National Labor Relations Board through the Regional
Director for Region 6, and an answer filed on behalf of
David F. Irvin and James B. McKelvy, Partners, d/b/a The
Irvin-McKelvy Company (herein the Respondent or
Company) dated November 28 .2
The principal issue presented is whether Respondent
violated Section 8(a)(1), (2), (3), and (5) of the National
Labor Relations Act, as amended (herein the Act), when,
on or about April 1, it ceased to recognize District 50 as
collective-bargaining representative of its construction
employees and commenced recognizing United Mine
Workers of America (herein U.M.W. or the Mine Workers)
as collective-bargaining representative of the same employ-
ees.
At the hearing, all parties were given full opportunity to
present evidence, to examine and cross-examine witnesses,
to argue orally on the record, and to file briefs. Oral
argument was waived. Helpful, posthearing briefs have
been received from counsel for the General Counsel and
counsel for the Respondent, which have been carefully
considered.
Upon the entire record in the case,3 including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
Respondent is a partnership engaged in construction
work in and about coal mines, with its principal office
located in Indiana, Pennsylvania. During an annual period,
Respondent receives goods and materials valued in excess
of $50,000 directly from outside the Commonwealth of
Pennsylvania for use within said State.
I find, as the Respondent concedes, that the Respondent
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find, that
District 50 and Mine Workers are now, and have been at all
times material, labor organizations within the meaning of
Section 2(5) of the Act.
1 All dates hereinafter refer to the calendar year 1969 unless otherwise
specified.
2 The original charge was filed by International Union of District 50,
United Mine Workers of America (herein District 50) on July 9, amended
November 17
3 On January 20, 1970, counsel for the General Counsel filed with the
Trial Examiner a motion to correct the transcript of proceedings in a
A. Background
The facts giving rise to the issues in this case are not
essentially in dispute, and may be summarized as' follows:
As previously noted, the Respondent is a contracting firm
engaged primarily in the business of building preparation
and material handling facilities for coal mine operators in
the bituminous coal mine fields. The principal classifica-
tions of workers employed are welders and steelworkers,
which numbered approximately eighteen (18) as of the time
of the hearing. (Resp. Exh. 2.)
Prior to June 1964, Respondent's employees were not
represented for collective-bargaining purposes by any labor
organization. However, at that time, according to the
uncontradicted testimony of James B. McKelvy (a partner
in the enterprise), the Company became involved in some
contract work in the State of Ohio and the partners were
informed that they could not do the work unless they were
affiliated with either District 50 or the Mine Workers.
Accordingly, McKelvy contacted an official of District 50
and subsequently signed a collective-bargaining agreement
with that organization covering the Respondent's construc-
tion employees. That contract contained a union-security
clause, and the Company also, upon authorization,
deducted dues from the employees and remitted them to
District 50.
On October 30, 1966, the same parties signed a
supplemental agreement to the June 1964 agreement, which
related solely to wages.
On June 27, 1967, the parties, indicating a mutual desire
to -become parties to an industrywide agreement, adopted
the industry contract which had been negotiated and
executed between the Coal Mine Construction Contractors
Association, Inc. (herein CMCCA) and District 50, which
was effective June 1, 1967, to May 31, 1970. That contract,
covering the same employees of the Respondent who were
encompassed under the June 1964 agreement, also
contained union-security and checkoff clauses which were,
as far as the record shows, complied with by the
Respondent .4
B. Events Leading up to Recognition of the Mine
Workers
1. Respondent becomes a member of ABC
In October 1968, an event occurred which was to have a
significant impact upon the Respondent's business opera-
tions, for in that month a contract was signed between the
coal mine operators and the Mine Workers (known as the
National Bituminous Coal Wage Agreement of 1968) which
contained a section entitled "Construction Work," as
follows:
All construction of mine or mine-related facilities
certain respect, which motion was served on all other parties to the
proceeding. No opposition to such motion having been filed with me, and
the contents of the motion being in accord with the recollection of the Trial
Examiner, the motion is hereby granted.
4 Although the Respondent adopted the collective-bargaining agreement
negotiated by CMCCA, the Company never became a member of that
association.
THE IRVIN-Mc KELVY COMPANY
including erection of mine tipples and sinking shafts
which is not performed by the operator may be
performed by such outside contractors as are designat-
ed by the operator and such work will be under the
jurisdiction of the United Mine Workers of America in
the manner and to the extent permitted by law.5
Respondent was advised by several of its customers (coal
mine operators) that in order to get business , the work
would have to be done with United Mine Workers of
America labor. Whereupon, in late 1968 or early 1969,
Respondent joined the Association of Bituminous Contrac-
tors (herein called ABC), an organization which had been
formed to negotiate collective-bargaining agreements on
behalf of its members with the Mine Workers. As a member
of ABC, Respondent was able to avail itself of the
agreement which ABC had negotiated with the Mine
Workers on December 10, 1968. However, Respondent was
obviously not in a position at that time to recognize the
Mine Workers as collective-bargaining representative of its
employees because of the existence of its agreement with
District 50 which had another year and 5 months to run.
Nevertheless, at or about this time, an event occurred which
Respondent seized upon as a lever to terminate its contract
with District 50. These events may be described as follows.
2. The implementation of the "most favored
nations" clause
Article XIV, section 3, of the CMCC-District 50 contract
(which Respondent had adopted), provides as follows:
In the event any contract or agreement is executed on or
after the date of this agreement between the union and
any employer (as that term is defined in this agreement)
performing construction work on coal mine lands, and
said contract or agreement is more favorable to the
employer in its provisions than any of the provisions of
this agreement, then the Association or any employer
who is signatory hereto may have identical provisions
inserted in this agreement upon request and said
provisions shall immediately become in full force and
effect.6
On October 29, 1968, District 50 entered into an
agreement with a contractor named Zeni-McKinney-
Williams Corporation, an employer-member of the Coal
Mine Construction Contractors Association, which agree-
ment covered the construction of a coal washing plant
project for the Consolidation Coal Company, at Rowland,
West Virginia. That agreement provided that the employer
would become a party to and abide by all the terms and
provisions of the Association contract with District 50 "for
the period of time required for the construction of the
aforementioned coal washing plant." In other words, Zeni-
McKinney-Williams and District 50 entered into an
agreement incorporating all the terms and provisions of the
Association agreement except for the term thereof (June 1,
1967, to May 31, 1970), and their agreement thereby
became what is known in the industry as a "project
agreement."
Pursuant to its contractual obligations with CMCCA, the
5 G.C. Exh. 6, p 14.
6 This paragraph is commonly referred to as a "most favored nations"
57
president of District 50, on November 5, 1968 , notified
CMCCA of the aforesaid agreement with Zeni-McKinney-
Williams. Whereupon, on December 9, 1968, E. Riley
Casey, Esq., secretary and general counsel of CMCCA,
dispatched a letter to the president of District 50. This letter
noted that the Union and Zeni-McKinney-Williams had
recently entered into a project agreement ; that CMCCA
considered the terms thereof more favorable to it than the
existing contract ; and that therefore pursuant to the "most
favored nations" clause above quoted, the existing
agreement was to be binding on the employer-members
only "for the period of time required for the construction of
the particular project they may presently be working on."
In other words, CMCCA took the position that the project
clause in the Zeni-McKinney-Williams agreement was
more favorable to CMCCA than the long-term contract
presently existing, and therefore requested that such clause
be immediately inserted in the Association agreement
instead of the termination clause presently existing.
On December 27, 1968, the president of District 50
responded to Casey disagreeing with his interpretation of
the said "most favored nations" clause , and argued that the
existing contract between District 50 and CMCCA should
remain in full force and effect until its expiration on May
31, 1970. Nevertheless, Casey, as secretary and general
counsel to ABC, explained to James McKelvy of the
Respondent, in early 1969 , the effect of the conversion of
the CMCCA-Distnct 50 contract from a term to a project
contract, and advised McKelvy that at the completion of
each project on which he was then working he would be
free to apply the contract which had been negotiated
between ABC and the Mine Workers.
Having been advised that his contract with District 50
had been converted to a project-type contract rather than a
term contract, McKelvy ceased applying the District 50
contract on March 31 and commenced recognition of the
Mine Workers on April 1. McKelvy explained that
Respondent determined to switch over from District 50 to
the Mine Workers at one particular time rather than project
by project ". . . since most of our men were on location, 3
or 4 different jobs, that it would probably be more
convenient to all concerned, to establish the date, we would
simply cut off all District 50, and go into UMWA as of that
date, and that date was determined to be April 1, 1969."
McKelvy further explained that although all the projects
had not been entirely completed on that date, ".
essentially all of the major portions of any work that we
were doing had terminated by or about on April 1, one
project carried over for a few days into April." Accordingly,
after April 1, Respondent recognized the Mine Workers as
the collective-bargaining representative of its construction
employees, who were the same employees that had been
previously covered by the District 50 contract, and
thereafter Respondent applied the contract which had been
negotiated by ABC with the Mine Workers. According to
such agreement , Respondent deducted dues from its
employees and submitted same to the Mine Workers.7
clause.
r It appears from Resp. Exh 2 that as of April 1 Respondent's
(Continued)
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. ANALYSIS AND CONCLUDING FINDINGS
A. The Appropriate Unit
The complaint herein alleges the following unit as
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act:
All construction employees of Respondent working on
construction jobs, but shall not include start-up
technicians, guards, technicians employed by original
equipment manufacturers, persons engaged in engineer-
ing or clerical work, timekeepers, superintendents,
assistant superintendents, general foremen and fore-
men.
Although the foregoing allegation was denied in the
answer to the complaint filed on behalf of the Respondent,
it appears that the unit description corresponds substantial-
ly with that contained in the collective-bargaining agree-
ment originally signed by Respondent and District 50 in
June 1964, and there is no evidence that such unit was
changed from that time until the Respondent terminated its
contract with District 50 on March 31, 1969.
In the light of such history of collective bargaining and
since Section 9(b) of the Act specifically sanctions an
employer unit as one which may be appropriate for the
purposes of collective bargaining, I find that such unit is an
appropriate one for collective bargaining within the
meaning of Section 9(b) of the Act.
B. The Status of District 50 on March 31, 1969
The Respondent contends that on March 31 it was
privileged to terminate its agreement with District 50 since
the same was ". . . invalid and not binding on the
Company since District 50 was, at the time of the
agreement's execution, an illegally assisted union." (Co. br.,
p. 11.)
I do not agree with this contention. At the outset,
considering equitable principles, such contention comes
with ill grace from the person who engaged in the conduct
constituting the alleged illegal assistance, having enjoyed
the fruits thereof for approximately 5 years. But, in any
event, it seems well-established that Section 10(b) of the Act
would preclude any finding of whether or not recognition
by the Company of District 50 in 1964 constituted illegal
assistance.8 In addition, I note a lack of any evidence that
the employees objected to such recognition, or that they
sought any assistance from the National Labor Relations
Board, or any other agency, with an objective of ridding
themselves of District 50. Nor did they, at the end of the
contract term (in 1967) file any petition for an election to
redetermine their representative's status.
Moreover, I note, as Respondent concedes (Co. br., p. 11,
fn. 2), that the original contract between Respondent and
District 50 could be considered to be a valid prehire
agreement under Section 8(f). Although the 1967 agreement
would not be so protected under the rule explicated in
complement of employees numbered approximately 15, Swanlek, Yarger,
and Fmk having been lured subsequent to April 1. '
8 See Local Lodge No. 1424, International Association of Machinist,
AFL-CIO [Bryan Manufacturing Co.] v. N L R B, 362 U.S 411 (1960).
9 162 NLRB 476, 478.
10 Cf. Shamrock Dairy, Inc ., 119 NLRB 998, 1002.
Bricklayers & Masons International Union Local 3 (Eastern
Washington Builders),9 it would seem that the presumption
of regularity and legality would prevail.10 Under these
circumstances, there being no evidence of a question
concerning representation appearing in 1967, it was not
unproper or illegal for Respondent to have signed that
agreement. Accordingly, District 50 was entitled to
representative status for the duration of that contract (until
May 31, 1970) 11 unless , as Respondent contends, the term
was shortened by proper implementation of the "most
favored nations" clause.
C. The Impact of the "Most Favored Nations"
Clause
It is to be recalled that one of the provisions of the
CMCCA-District 50 contract, which was incorporated by
reference in the Respondent's contract with District 50, was
a clause commonly referred to as the "most favored
nations" clause, above-quoted in section III, B, 2.
Respondent contends that such clause, in itself "legally
objectionable,"12 was properly invoked by Respondent
following District 50's subsequent contract with Zeni-
McKinney-Williams, and as a result the CMCCA-District
50 contract "was converted to a project agreement,
terminating with the completion of each individual
construction project on which the Company was engaged at
the time of the clause's invocation." (Co. br., pp. 13-14.)
Counsel for the General Counsel contends that this clause
"does not apply" because it was not intended by the parties
to relate to the duration of the contract. (G.C. br. pp. 5-6.)
Recalling that this is an affirmative defense placing the
burden of persuasion upon the Respondent on this issue, I
am not persuaded that the parties intended for the clause to
cover the term of the contract; rather, it appears that the
Respondent seized upon this apparently fortuitous circum-
stance to escape the burden of recognition of District 50 in
order to recognize the Mine Workers as collective-bargain-
ing representative of its construction employees. Thus, I am
in full accord with Respondent in its statement of the
purpose of such clause: "The obvious intent of such a
clause is to preserve uniform wages, hours and working
conditions, by giving all signatories to the basic agreement
assurance that they will be treated on a parity with other
companies performing similar work with whom the Union
subsequently negotiates." (Resp, br., p. 14.) Clearly, such
clauses are designed to eliminate economic advantages of
one employer over another within the same industry. They
thus relate to substantive provisions in the agreement and
not to its term, since term does not, in itself, have anything
to do with competitive advantage or disadvantage.'
The foregoing conclusion is reflected by an analysis of
the language of the CMCCA-District 50 agreement itself.
Thus the clause in question speaks of "provisions" of this
agreement. In the preamble to the agreement (art. 1), a
11 Ibid
12 Since the legality of the clause itself was not attacked by the General
Counsel either in the complaint or at the hearing, that issue was not
litigated. In the absence of definitive Board law to the contrary, I will
assume the legality of such a clause under the Act, for the purpose of
disposing of the ultimate issue herein.
THE IRVIN-Mc KELVY COMPANY 59
distinction is made between "provision" and "term" of the
agreement as follows:
It is mutually understood that the following terms
and conditions relating to the employment of the
employees covered by this Agreement have been
decided upon by means of collective bargaining and
that the following provisions will be binding upon the
parties signatory during the term of this Agreement and
any renewal thereof. [Emphasis supplied.]
It is true that there is some evidence in the record that the
matter of different types of contracts as relates to tenure
(term, project, and area) was discussed during the
negotiations of the CMCCA-District 50 agreement. Howev-
er, this testimony, which is somewhat vague, does not serve
to justify departure from the normal intent of such clauses,
in the light of the specific contract language hereinabove
adverted to. Accordingly, under the particular circum-
stances of this case wherein the employer was seeking to
escape its obligations under the District 50 agreement for
the purpose of signing a prehire contract with the Mine
Workers, I find that the Respondent wrongfully invoked
the "most favored nations" clause, and that it could not
legally serve to terminate the Respondent's collective-
bargaining agreement with District 50.
However, I do not rest my decision in this case solely on
this ground, since I find, infra, that the Respondent's
defense based upon the asserted applicability of Section
8(f) of the Act is also without merit.
D. The Applicability of Section 8(f)
It is the contention of the Respondent that since it had
the right, pursuant to the invocation of the "most favored
nations" clause, to terminate its agreement with District 50
on March 31, it was then legally free to apply a prehire
agreement, like the ABC-UMW agreement, without regard
to whether District 50 had a claim of representing the
Company's employees. Counsel for the General Counsel
argues that even assuming, arguendo, the Company had a
right to terminate the District 50 agreement, it was not
privileged to recognize the UMW under the circumstances
of this case since a question concerning representation was
pending. I agree with the General Counsel.
Respondent concedes that were this a case involving a
mine, mill, or factory, i.e., not in the building and
construction industry, it would have been a clear violation
for Respondent to have immediately recognized the Mine
13 Midwest Piping & Supply Co., 63 NLRB 1060 See also N L R B v
Signal Oil and Gas Co, 303 F 2d 785, 786-787, 788 (C A. 5, 1962), where
the court said.
1W ]hen an employer is faced with conflicting claims of oval unions
and a serious question exists as to which union represents a majority
of employees , the employer must adhere to a policy of strict neutrality.
The employer must withhold recognition of either union until the
rivalry is settled at the polls in a Board -conducted, secret election
14 Sec. 8(f) of the Act, enacted in 1959, provides in full as follows-
It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the building
and construction industry to make an agreement covering employees
engaged (or who, upon their employment , will be engaged) in the
building and construction industry with a labor organization of which
building and construction employees are members (not established,
maintained , or assisted by any action defined in section 8(a) of this
Act as an unfair labor practice ) because ( 1) the majority status of such
labor organization has not been established under the provisions of
Workers as the collective-bargaining representative of its
employees following termination of its contract with
District 50 since such mere termination of a contract would
not have obliterated District 50's claim to represent the
employees.13 However, Respondent argues that the Mid-
west Piping doctrine does not apply in this situation because
the employer is engaged primarily in the building and
construction industry and is therefore privileged, under
Section 8(f) of the Act, to recognize a labor organization as
collective-bargaining representative of its construction
employees without regard to whether the majority status of
such labor organization has been established under Section
9 of the Act.14
The legislative history of Section 8(f) teaches that
Congress sought by this enactment to create an exemption
for the building and construction industry from some of the
strictures of the Act which existed at the time. S. Rep. No.
187 on S. 1555, 86th Cong., 1st sess ., described the situation
as follows:
In the building and construction industry it is
customary for employers to enter into collective
bargaining agreements for periods of time running into
the future, perhaps I year or in many instances as much
as 3 years. Since the vast majority of building projects
are of relatively short duration, such labor agreements
necessarily apply to jobs which have not been started
and may not even be contemplated. The practice of
signing such agreements for future employment is not
entirely consistent with Wagner Act rulings of the
NLRB that exclusive bargaining contracts can lawfully
be concluded only if the union makes its agreement
after a representative number of employees have been
hired. One reason for this practice is that it is necessary
for the employer to know his labor costs before making
the estimate upon which his bid will be based. A second
reason is that the employer must be able to have
available a supply of skilled craftsmen ready for quick
referral. A substantial majority of the skilled employees
in this industry constitute a pool of such help centered
about their appropriate craft union. If the employer
relies upon this pool of skilled craftsmen, members of
the union, there is no doubt under these circumstances
that the union will in fact represent a majority of the
employees eventually hired.15
The report noted other provisions of Sec. 8(f) "... which
take into account the occasional nature of employment in the
section 9 of this Act prior to the making of such agreement, or (2) such
agreement requires as a condition of employment, membership in such
labor organization after the seventh day following the beginning of
such employment or the effective date of the agreement , whichever is
later, or (3) such agreement requires the employer to notify such labor
organization of opportunities for employment with such employer, or
gives such labor organization an opportunity to refer qualified
applicants for such employment , or (4) such agreement specifies
minimum training or experience qualifications for employment or
provides for priority in opportunities for employment based upon
length of service with such employer, in the industry or in the
particular geographical area, Provided That nothing in this subsection
shall set aside the final proviso to section 8(a)(3) of this Act. Provided
further, That any agreement which would be invalid, but for clause (1)
of this subsection , shall not be a bar to a petition filed pursuant to
section 9(c) or 9(e)
is 1 Leg Hist. 424 (1959)
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
building and construction employee [sic ]. It does so by
reducing from 30 days to 7 the grace period before which
the employee may be required to join the union. The
reduction in this time allowance reflects the normally short
employment period for construction employees." [Emphasis
supplied.]
This section, being in the nature of an exception from the
general rule, must be strictly construed. While Respondent
qualifies as an employer in the building and construction
industry, it is readily apparent that the situation here does
not fall within the intent and spirit of Section 8(f). That is to
say, the Respondent did not need to enter into a prehire
agreement for the purpose of ". . . hav[ing] available a
supply of skilled craftsmen ready for quick referral," since
he already had a complement of employees of longstanding
tenure with the firm, who worked on several projects
concurrently. Nor does the instant situation reflect "the
occasional nature of employment of the building and
construction employee" who may work for several different
employers within the space of a year due to the relatively
short duration of building projects. Rather, the Respondent
here had a "stable working force" 16 and merely desired to
change the collective-bargaining representative of such
force from one union to another so that he would be able to
qualify for contracting work with coal mine operators who
were contractually obligated with the Mine Workers. I find
and conclude that Section 8(f) was not written to
accomplish such purpose and that, under the circumstances
extant in the instant case, Respondent was bound to play
by the ordinary rules of the game and have the
representation question established through procedures
prescribed in Section 9 of the Act.17
In view of all the foregoing, I find and conclude that
Respondent violated Section 8(a)(1) and (5) of the Act by
withdrawing recognition from District 50 at a time when
the Respondent was bound to continue such recognition
under a valid and binding contract, and by failing to
maintain such contract in effect for the remainder of its
term. I also find and conclude that Respondent violated
Section 8(a)(1) and (2) in assisting the Mine Workers by
extending recognition and contracting with it, and violated
Section 8(a)(1) and (3) by requiring membership in the
Mine Workers as a condition of employment, and will
recommend an appropriate remedy.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
16 "See the discussion of Congressman Thompson, comparing, the
transitory and sporadic nature of employment in the building and
construction industry and the fixed nature of employment in
manufacturing. II Leg. Hist. of the Labor- Management Reporting and
Disclosure Act of 1959, pp. 1577(3)-1578(2)," cited in Oilfield Maintenance
Company, Inc., 142 NLRB 1384, fn 5 See also Bricklayers, Local 3, supra,
fn. 9, where the Board held Sec. 8(f) inapphcable in a case involving
employees who "have previously been hired."
iz Respondent argues that the second proviso to Sec. 8(f) would retain
freedom of choice to its employees by enabling District 50 to file a petition
under Sec. 9(c) which would not be barred by the prehire agreement.
However, this presupposes a situation in the building and construction
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having, found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
Having found that the Respondent unlawfully recognized
and contracted with the Mine Workers, thus assisting that
organization, it will be recommended that it withdraw
recognition from the Mine Workers and cease giving effect
to the December 10, 1968, contract, or any supplement,
extension, or renewal thereof.
Contrary to the request of counsel for the General
Counsel, however, I do not believe that an order is
warranted requiring Respondent to reimburse dues,
initiation fees , and assessments the employees may have
paid to the Mine Workers subsequent to April 1. Unlike the
cases cited by him (G.C. br., p. 8), the record herein
contains no evidence of employer solicitation or coercion of
membership in the Mine Workers other than that contained
in the union-security clause of the contract. Only recently,
the U.S. Court of Appeals for the Ninth Circuit has
indicated, after a review of the Supreme Court Decisions on
the issue, that this was too slender a reed upon which to
base an order requiring restitution of dues and
assessments.18 In Intalco, the court noted:
There is no specific finding that any of the employees
suffered any loss or objected to the payment of dues.
No distinction was made between those employees who
wanted the union and voluntarily agreed to a dues
check-off and those whose dues were checked off only
because of the requirement of the collective bargaining
agreement.
In the instant case, not only is there a lack of evidence
that any employee suffered loss or objected to the payment
of dues, there is affirmative evidence that the employees
benefited economically from the Mine Workers contract
which contains substantially higher wage rates than the
District 50 agreement. Thus, to require Respondent to
reimburse the employees under these circumstances would
secure to them an unwarranted windfall.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
industry to which Sec. 8(f) is applicable. For reasons hereinabove set forth,
I have found that such a situation did not exist with Respondent who
already had a complement of employees of longstanding tenure of
employment. If Respondent's theory of the section were allowed to hold,
these employees might be subjected to the imposition of a half-dozen
different unions per year (according to the number of projects contracted
by Respondent) and be put to the responsibility of petitioning the Board
for elections to replace them, a situation clearly not contemplated by
Congress.
18 See Intalco Aluminum Corporation v N LR.B., 417 F 2d 36, 41
(September 19, 1969). See also Local 60, Carpenters [Mechanical Handling
SystemsI v. N.LR B, 365 U.S. 651 (1961).
THE IRV1N-Mc KELVY COMPANY 61
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. District 50 and the Mine Workers are each labor
organizations within the meaning of Section 2 (5) of theAct.
3. By recognizing and entering into a contract with the
Mine Workers , the Respondent has interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, and has contributed
support to the Mine Workers in violation of Section 8(a)(1)
and (2) of the Act.
4. By entering into a contract with the Mine Workers
requiring membership in that organization as a condition of
employment, the Respondent has discriminated in regard
to hire or tenure of employment to encourage membership
in the Mine Workers and to discourage membership in
District 50, and has thus engaged in unfair labor practices
within the meaning of Section 8 (a)(1) and (3) of the Act.
5. By terminating its contract with District 50 on March
31, 1969 , and refusing to recognize and bargain with that
labor organization thereafter , the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]