U.S. Abatement, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1991

303 N.L.R.B. 451 (N.L.R.B. 1991)

451
303 NLRB No. 73
U.S. ABATEMENT, INC.
1 We agree with the judge’s finding that the Respondent is an employer pri-
marily engaged in the building and construction industry within the meaning
of Sec. 8(f) of the Act for the reasons stated by him and we note that his
analysis is consistent with Board law. See Zidell Explorations, 175 NLRB 887,
888–889 (1969) (wrecking and dismantling operation is properly viewed as in
the building and construction industry’’ under 8(f).
In adopting the judge’s finding that the complaint is not barred by Sec.
10(b), we find it unnecessary to rely on his discussion of Chemung Con-
tracting Corp., 291 NLRB 773 (1988), and Al Bryant, Inc., 260 NLRB 128
(1982).
2 The Respondent has excepted to the judge’s conclusion that the provisions
of the ‘‘National Maintenance Agreement (Revised)’’ (NMA) do not apply.
The NMA is referenced by the 1986–1989 agreement between Union Local
#8 and the Master Insulators Association of Cincinnati Ohio (the
Union/Association agreement), which the judge found was binding on the Re-
spondent. The Respondent argues that if it is bound to any agreement with
the Union, that agreement must be the NMA. The Charging Party introduced
into evidence a January 8, 1987 copy of the NMA, which, however, was not
signed by the Respondent. With regard to the Respondent’s contractual obliga-
tion, we agree with the judge that the Respondent entered into a lawful 8(f)
agreement when, on August 24, 1987, it signed the ‘‘Labor Agreement’’ bind-
ing it to the Union/Association agreement and that the Respondent violated
Sec. 8(a)(5) and (1) by repudiating that contract and ceasing to pay wage rates
and contributions required by it. Further, We find that the judge properly or-
dered the Respondent to pay delinquent contributions and to make employees
whole for any lost wages. However, in remedying these violations, we find
it unnecessary to decide, as a practical matter, whether the Respondent is
bound by the provisions of the NMA. In this regard, we note that art. VIII
of the NMA provides, in pertinent part, that ‘‘[w]age rates shall be those set
forth in the current Labor Agreement of the affiliated Local Union where the
work is to be performed . . . .’’ Similarly, art. IX provides in pertinent part
that ‘‘Welfare Funds, Pension Funds . . . and other monetary funds called for
in the Local Union Labor Agreement shall be paid in accordance with the
Local Union Labor Agreement . . . .’’ It appears beyond serious doubt that
the ‘‘current Labor Agreement of the affiliated Local Union’’ and the ‘‘Local
Union Labor Agreement’’ to which these provisions rfer is, in this case, the
Union/Association agreement. Thus, as the NMA refers back to the relevant
provisions of the Union/Association agreement and impose the latter’s wage
rates and benefits on signatory employers, the Respondent’s obligations under
the recommended Order, adopted here, will be defined by the terms of the
Union/Association agreement regardless of whether or not it requires the Re-
spondent to be bound by the NMA.
1 U.S. Abatement, according to its president, Terry Estes, also bids on other
types of work, such as removing pigeon droppings. Its principal business, how-
ever, is the removal and disposal of asbestos used in the structure of buildings
or in mechanical systems installed in buildings. Estes characterized the Com-
pany’s work as 65 percent structural and 35 percent mechanical. Because of
the health hazards posed by asbestos, the work is considered to be dangerous,
and requires some training in safety procedures.
2 There is no evidence of record disclosing how the ownership of U.S.
Abatement is distributed among Terry Estes and his partners. At the time of
the hearing, Estes had been the Company’s president for about 1-1/2 years,
and its chairman for 30 days.
U.S. Abatement, Inc. and International Association
of Heat and Frost Insulators and Abestos
Workers, Local Union #8, AFL–CIO. Case 9–
CA–25744
June 20, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On July 9, 1990, Administrative Law Judge William
A. Pope II issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
Charging Party an answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, U.S. Abatement, Inc., Cin-
cinnati, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
James R. Schwartz, Esq., for the General Counsel.
Roger A. Weber, Esq., of Cincinnati, Ohio, for the Respond-
ent.
Gary M. Eby, Esq., of Cincinnati, Ohio, for the Charging
Party.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In a
complaint, dated October 21, 1988, the Regional Director for
Region 9 of the National Labor Relations Board (the Board)
alleged that the Respondent, U.S. Abatement, Inc., violated
Sections 8(a)(1) and (5) and 8(d) of the National Labor Rela-
tions Act (the Act) by refusing to pay its employees wages
and fringe benefits in accordance with a collective-bargaining
agreement with the International Association of Heat and
Frost Insulators and Asbestos Workers, Local Union #8,
AFL–CIO (the Union), and by refusing to furnish to the
Union information necessary for its performance of its func-
tions as exclusive bargaining representative of Respondent’s
employees constituting a unit appropriate for purposes of col-
lective bargaining. Trial took place before Administrative
Law Judge William A. Pope II, in Cincinnati, Ohio, on Feb-
ruary 21 and 22, 1989.
Background
U.S. Abatement Inc., is engaged in the business of asbes-
tos abatement.1 The Company was formed in 1987 by Terry
Estes, its president and now chairman, and several partners.2
Its first asbestos abatement job was in the Cincinnati, Ohio
area, in November 1987. Since then the Company has ex-
panded its operations outside of the Cincinnati area.
At the time of the hearing in this case, Terry Estes was
29 years old. He testified that he had an 11th grade edu-
cation, and had worked as an ironworker from 1977 to 1984,
when he went into business for himself and formed J&B
Steel, a company engaged in the business of placing rein-
forcing steel in buildings under construction. He stated that
J&B Steel does only union work, and that it has worked with
over 12 local unions of the Iron Workers Union. Estes char-
acterized J&B Steel as the sixth top steel contractor in the
United States.
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It was stipulated that Wilson has acted as counsel for Respondent at times,
and sits on Respondent’s board of directors.
4 Black told Estes that a certified journeyman had 32 hours of Environ-
mental Protection Agency approved training in safe methods of asbestos abate-
ment.
5 Gregory Wilson, Estes’ attorney, testified that Estes signed the ‘‘joinder
agreements before I knew he was going to.’’
6 The Respondent did not then, and apparently still does not, operate with
a stable work force. Instead, Respondent hires employees on a project-by-
project basis.
7 Estes said that this employee performed the same kind of work as per-
formed by John Cox, a mechanic referred by the Union, on the first four Cin-
According to Estes, he decided to go into the asbestos
abatement business in June 1987, and discussed the idea of
forming an asbestos removal company with his attorney,
Gregory Wilson.3 Wilson directed the preparation of a busi-
ness plan by an economics professor at Northern Kentucky
University, and began making arrangements for obtaining fi-
nancing and handled the other formative aspects of the com-
pany. Estes said that it was his intention from the outset to
obtain employees through a union, because, based on his ex-
perience with J&B Steel, he thought that a union would have
better quality people available and would be a more con-
sistent source.
In May 1987, Estes initiated the first of a series of tele-
phone conversations with Richard T. Black, the business
manager of Asbestos Workers Local Union #8, in Cincinnati,
Ohio, about Estes interest in getting into asbestos abatement
work. The parties agree that during these conversations,
Estes sought information about the abatement business, how
union contracts worked, the competency of union members,
and indicated an interest in signing a union contract.
In June 1987, Estes met with Black at a local restaurant.
Also present were Union President Danny Lichtenfeld and
Gregory Wilson, Estes’ attorney. Black acknowledged in his
testimony that Estes said during the meeting that he wanted
to get started in asbestos abatement business, and that he was
seeking the Union’s help. Black said that a big part of the
conversation concerned Estes’ desire to get a leadperson, a
competent person to supervise his operation.
It appears from Black’s testimony, that there is no dispute
that Estes told Black that he wanted the Union’s help in get-
ting started in the asbestos abatement business. Estes asked
for information concerning the people the Union could sup-
ply. Black told Estes that the Union could furnish competent,
certified employees, and that the ratio would be one journey-
man (certified) to four abatement workers.4 According to
Black, the term ‘‘competent person’’ as used by the Union
and contractors in the abatement field meant a certified jour-
neyman. It is clearly inferable from the conversations be-
tween Black and Estes that Black knew that Estes intended
to hire employees on a project-by-project basis. Estes testi-
fied that he was told the ratio would be one mechanic to four
abatement-type people, and what the wage rates and fringe
benefit rates would be.
Estes admitted signing General Counsel’s Exhibit 4 (GC-
4), entitled ‘‘Labor Agreement,’’ on August 24, 1987,5 as the
authorized representative of Respondent. Business Agent
Black signed the same document on August 17, 1987, as the
authorized representative of the Union. The text of the two-
page document follows:
In consideration of the benefits to be derived and
other good and valuable considerations, the undersigned
Employer or successors although not a member of the
Master Insulators Association of Cincinnati, Ohio, does
hereby join in, adopt, accept and become a party to the
current collective bargaining agreement made by the
Master Insulators Association of Cincinnati, Ohio and
the International Association of Heat and Frost
Insulators and Asbestos Workers, Local No. 8, Cin-
cinnati, Ohio. The undersigned also agrees to be bound
by any additions, modifications, or subsequent collec-
tive bargaining agreements entered into by the Union
and the Master Insulators unless the undersigned Em-
ployer gives notice to the Union at least 30 days prior
to the expiration of the collective bargaining agreement
that it no longer intends to be bound by subsequent
agreements.
The Employer further accepts all of the provisions of
said collective bargaining agreement pertaining to con-
tributions to various Trust Funds providing for Health
and Welfare, Pension and Vacation benefits for employ-
ees, or any other fringe benefit.
The Employer further agrees to be bound by any
Trust Agreement hereinafter entered into between the
Association and Local No. 8 and agrees to make con-
tributions as required and authorizes the Association
and Local No. 8 to name Trustees to administer said
employee Benefit Funds. The undersigned Employer
ratifies and accepts such Trustees and the terms and
conditions of the Trust as if made by him.
The Union agrees to extend the terms of the collec-
tive bargaining agreement made between it and the
Master Insulators Association to the undersigned Em-
ployer as if he were an original signatory thereto.
It is undisputed that Respondent performed four asbestos
abatement jobs in the Cincinnati area between November
1987 and February 20, 1988, utilizing employees referred by
the Union on a project-by-project basis.6 These jobs are var-
iously referred to as the Atlas Bank building (October 1987),
Cin-Pac (December 1987), P&G (Proctor & Gamble), and
the DeYoung residence (February 1988). Records from var-
ious union-management fringe benefit funds show that the
Respondents made contributions for the periods from Octo-
ber 28 to November 27, 1987; December 1 to December 31,
1987; and, January 1 to January 31, 1988. Estes testified that
Respondent paid fringe benefits for the DeYoung residence
job, which was completed by February 20, 1988, ‘‘a month
later for that job.’’
Expressing dissatisfaction with the quality of employees
and availability of employees referred by the Union for Re-
spondent’s first four jobs in the Cincinnati area, Estes testi-
fied that he ‘‘felt we had not had a contract since February
15.’’ He acknowledged that he did not contact Union Busi-
ness Manager Black to discuss his dissatisfaction.
Following completion of the DeYoung job, Respondent
performed a job at the Liberty National Bank in Louisville,
Kentucky, and then began a structural asbestos abatement job
(which, according to Estes, did not involve asbestos used as
thermal insulation) sometime in March 1988 at Emery Indus-
tries in the Cincinnati, Ohio area. Terry Estes testified that
on this job he employed one supervisor who performed the
work of a mechanic,7 and abatement workers. None of these
453U.S. ABATEMENT, INC.
cinnati jobs. Estes testified that he paid the supervisor on the Emery Industries
job $15 per hour (less than the collective-bargaining wage for mechanics), and
that no fringe benefits were paid.
8 Estes testified that he made other wage changes after the Emery Industries
job, but that he made no attempt to negotiate the wage rates with the Union.
9 All were mechanical jobs, involving hot or cold insulation materials on
pipes, fittings, or valves on boilers, and on ducts, flues, tanks, or vats. Else-
where in his testimony, Estes said that Respondent had completed 9 to 12 as-
bestos abatement jobs in the Cincinnati area since the DeYoung resident job
in January 1988.
10 Estes testified that since March 1, 1988, Respondent has not employed
anyone who has completed a mechanic’s exam after 5 years in the trade, or
anyone who is in an apprentice category.
employees had been obtained through the Union. He ac-
knowledged that the wages which he paid to Respondent’s
employees on the Emery Industries job were not in accord-
ance with the wage scale required under the collective-bar-
gaining agreement with the Union. Estes also acknowledged
that no fringe benefit fund contributions were made to the
Union for these employees.8
By letter, dated April 4, 1988, Union Business Manager
Black requested from Terry Estes of U.S. Abatement, ‘‘a list
of abatement workers and abatement specialist [sic] em-
ployed by U.S. Abatement Inc. at Emery Industries, Este
Ave., Cincti., Ohio, and the wage rate paid to these employ-
ees.’’ Business Manager Black testified that he did not re-
ceive a written reply from Estes, but that he had a conversa-
tion with Estes in which Estes indicated that he would like
to negate the contract. According to Black, he told Estes that
he could not approve the request, but would take it to the
Union’s executive board.
In a letter to Business Manager Black, dated April 14,
1988, Respondent’s vice president, Leslie J. Ungers, ac-
knowledged receipt of Black’s letter of April 4, 1988, and
said, ‘‘Since you are bringing the recision [sic] matter before
your executive committee, don’t you think it makes since
[sic] to get that issue resolved before involving employees?’’
In another letter to Black bearing the same date, Ungers
described the status of Respondent’s relationship with the
Union in the following terms:
As you and Terry Estes have discussed on several occa-
sions we believe that you have been unable to perform
under the contract do [sic] to your failure to provide
sufficient adequate trained workers to man our jobs as
you agreed to do. You have advised Mr. Estes that you
will bring before your executive board voluntary reci-
sion [sic] of the contract and we think that this is the
most sensible solution to this unfortunate problem.
In a written reply dated April 19, 1988, Black stated that he
would tell the Union’s executive board of Respondent’s de-
sire to cancel the contract, and, referring to his letter of April
4, 1988, repeated his request for ‘‘a list of the people who
were employed on the Emery project and their wage rate.’’
By letter of May 17, 1988, Gary Eby, the Union’s attor-
ney, informed Ungers that ‘‘your request that this collective
bargaining agreement with the Union be cancelled is re-
jected. It is the position of the Local that the agreement is
in full force and affect [sic] until its expiration in July,
1989.’’ Attorney Eby also stated, ‘‘In order to fairly admin-
ister this collective bargaining agreement, the Union reiter-
ates its request for information made by Business Agent
Black by the letter dated April 4, 1988 (copy attached).’’ It
is undisputed that Respondent did not furnish the requested
information to the Union.
Estes testified that Respondent has not made any payments
to the fringe benefit funds for projects completed by Re-
spondent since the DeYoung residence job in January 1988.
He said that since March 1, 1988, Respondent has completed
‘‘probably’’ five asbestos abatement jobs in the Cincinnati
area,9 but it has not employed anyone on any of these jobs
classified by the Union as a mechanic or apprentice;10 all the
employees have been classified as common laborers or su-
pervisors. Estes acknowledged that laborers employed by Re-
spondent do some of the jobs that asbestos abatement helpers
did on the first four jobs. It was stipulated that since March
1, 1988, Respondent has not employed anyone who was a
member of the Union or paid dues to the Union, or had any
contact with the Union.
Issues
The complaint alleges that since on or about August 24,
1987, the Union has been the recognized collective-bar-
gaining representative of Respondent’s employees in classi-
fications set forth in the Asbestos Workers Agreement of
1987, and has been recognized as such by Respondent. The
complaint further alleges that since in or about mid-April
1988, the Respondent has refused to abide by the Asbestos
Workers Agreement of 1987, and has failed to pay its em-
ployees wages and fringe benefit fund contributions in ac-
cordance with the collective-bargaining agreement. Finally,
the complaint alleges that since on or about April 5, 1988,
the Respondent has failed and refused to furnish the Union
information requested by the Union relevant to its perform-
ance of its functions as the the exclusive collective-bar-
gaining representatives of Respondent’s employees classified
as abatement workers and abatement specialists. The Re-
spondent, by its acts and conduct, is alleged to have com-
mitted unfair labor practices within the meaning of Sections
8(a)(1) and (5) and 8(d) of the Act.
a. Argument of the General Counsel. The General Counsel
contends that the two-page ‘‘Labor Agreement’’ signed by
Terry Estes on behalf of Respondent on August 24, 1987,
was a binding ‘‘typical ‘short form’ union contract by means
of which an employer assents to the terms of a more com-
plete agreement which is already in existence between a
union and an employers’ association.’’ Here, says the Gen-
eral Counsel, the complete agreement was several documents
constituting the ‘‘current’’ agreement between the Master
Insulators Association of Cincinnati, Ohio, and the Union.
Although the Master Insulators Agreement had expired on
June 20, 1986, the Union and the Master Insulators Associa-
tion had agreed to continue to abide by its terms. There was
also in effect a ‘‘National Maintenance Agreement,’’ which
was referred to in the Master Insulators Agreement, which
had no expiration date. Thus, concludes the General Counsel,
the Respondent was bound by a ‘‘full and complete
collective- bargaining agreement.’’ But, the General Counsel
argues further, even if neither of the two written agreements
were applicable to Respondent, the two-page ‘‘Labor Agree-
ment’’ signed by the Respondent contained agreement on
sufficient terms of employment to constitute a contract. The
contract between the Union and the Respondent is said to be
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 2(c) Respondent is now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of
the Act.
enforceable under Section 8(a)(5) as a prehire agreement
under Section 8(f).
The General Counsel argues that Respondent has admitted
that it unilaterally repudiated its collective-bargaining agree-
ment with the Union, as of late February 1988. But, con-
tinues the General Counsel’s argument, the violation was a
‘‘continuing violation,’’ of which the Union only became
aware within 6 months of the filing of the charge on Sep-
tember 6, 1988. The complaint is not barred by Section 10(b)
of the Act. Even if the 10(b) limitation is applicable, each
violation of the Act is a separate violation, and all violations
since March 6, 1988, are within the 6-month period.
The information sought by the Union in its letter of April
4, 1988, ‘‘requesting a list of abatement workers and abate-
ment specialist [sic] employed by U.S. Abatement, Inc. at
Emery Industries . . . and the wage rate paid to these em-
ployees,’’ was ‘‘information needed by the Union to make
a determination whether Respondent had in fact violated or
repudiated the contract.’’ The refusal of Respondent to fur-
nish the information violated the Act.
b. Argument of the Charging Party. The Charging Party,
in substance, joins with that there was created an enforceable
8(f) prehire agreement between the Respondent and the
Union, which the Respondent, without notice or good cause,
unilaterally breached. The letters sent by the Union to the
Respondent on April 4 and 19, May 17, and August 12,
1988, requesting information concerning the names of em-
ployees and wage rates paid, were clearly requests for infor-
mation essential to the Union’s enforcement of the agreement
and its representational status concerning employees. The Re-
spondent’s refusal to furnish the information violated the
Act. The Charging Party ‘‘makes no claim’’ concerning jobs
or wage rates paid outside the territorial scope of the Union’s
labor agreement, specifically, a job at the Liberty Bank in
Louisville, Kentucky. The Charging Party concedes that
since the labor agreement contains no exclusive hiring hall
provision, the Union makes no claim that unilateral solicita-
tion of employees by the Respondent violated the Act.
c. Argument of the Respondent. Respondent argues that the
General Counsel has failed to meet its burden of proving the
allegations of the complaint by a preponderance of the evi-
dence. Respondent acknowledges that on August 27, 1987, it
signed a 1-1/4 page document entitled ‘‘Labor Agreement.’’
The abrogation of the ‘‘real’’ agreement was by the Union,
however, and not by the Respondent. The Union failed to
meet its promise of providing a ‘‘ready supply of good,
qualified asbestos removal employees.’’ The Respondent had
promised, without any obligation to do so, to pay the wages
and provide the benefits of the Union’s associational con-
tract, ‘‘in exchange for the Union’s pledge of all the ready,
trained, qualified, capable people USA would want and need
to grow its business rapidly and successfully as targeted.’’
Contrary to its promise, however, ‘‘it had not provided and
could not provide the quality people when and as needed by
USA.’’
Respondent further argues that Section 8(f) is inapplicable
to it, because it is not ‘‘engaged primarily in the building
and construction industry.’’ Respondent reasons that it is pri-
marily engaged in maintenance-type work, which is not the
same as construction work.
Respondent factually distinguishes this case from John
Deklewa & Sons, 282 NLRB 1375 (1987), by raising the ar-
gument that here, unlike in Deklewa, there was a bilateral ab-
rogation of the ‘‘real agreement.’’
Further, the Respondent argues that the charge in this case
was untimely. The Respondent says that it gave ‘‘rather pub-
lic notice’’ of its repudiation of the agreement on February
17–18, 1988. Therefore, each subsequent failure to pay fringe
benefits was not ‘‘a separate, new violation,’’ but the result
of the repudiation.
The Respondent advances several alternative arguments.
Respondent says that the bargaining agreement was not, in
any event, enforceable, because ‘‘it is indefinite or vague as
applied to asbestos abatement.’’ Further, Respondent con-
tends that the Emery job, which was the subject of the
Union’s April 4, 1988 letter, was not ‘‘for the purpose of
thermal control,’’ and, therefore, fell outside the scope of the
alleged collective-bargaining agreement, the work jurisdiction
of which extended only to removal of ‘‘cold or hot thermal
insulation’’ and ‘‘for the purpose of thermal control.’’ Ex-
tending this argument, the Respondent alleges that 65 percent
of its asbestos removal work does not involve asbestos used
as thermal insulation. And, Respondent argues that the unfair
labor practices did not affect commerce, as required under
Sections 10(a) and 8(f). The Respondent concludes by argu-
ing that the alleged agreement was voidable because of mate-
rial misrepresentations by the Union, and that the General
Counsel failed to establish an enforceable written agreement
to pay fringe benefit fund contributions.
FINDINGS AND CONCLUSIONS
I.
In its answer, filed on November 4, 1988, Respondent stat-
ed:
2(c) In response to paragraph 2(c) of the Com-
plaint,11 Respondent admits that it is now, but denies
that it ‘‘has been at all material times herein,’’ an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
The general jurisdiction of the Board extends to ‘‘labor
disputes’’ affecting interstate commerce.’’ Whether practices
‘‘affect interstate commerce is not to be determined by con-
fining judgment to the quantitative effect of the activities im-
mediately before the Board.’’ NLRB v. Reliance Fuel Oil
Corp., 371 U.S. 224, 226 (1963). On the other hand, the
Board’s jurisdiction ‘‘must appear from the record; it cannot
be presumed.’’ NLRB v. Peninsula Assn. for Retarded Chil-
dren & Adults, 627 F.2d 202 (9th Cir. 1980).
The issue of jurisdiction was not litigated, as such, at the
hearing in this case; however, there was testimony that indi-
cated that from the outset Respondent intended to perform
jobs in areas remote from Cincinnati, Ohio. Terry Estes, Re-
spondent’s president and chairman, stated that when he de-
cided to go into the asbestos abatement business in June
1967, he intended to ‘‘start in Cincinnati, Ohio, build a core
of people, and go out from there.’’ Gregory Wilson, Re-
spondent’s attorney, testified that at the restaurant meeting in
June 1987, attended by Richard T. Black, Asbestos Workers
455U.S. ABATEMENT, INC.
Local #8’s business manager, and other union officials, he
explained that Estes’ other business, J&B Steel, operated in
a 300-mile radius, as far away as Kansas City, Missouri, and
St. Louis, Missouri, because he wanted to make sure that
Business Manager Black and Union President Lichtenfeld
‘‘understood that there was a need to provide manpower in
remote areas as well as our local area.’’
The first four jobs performed by Respondent took place in
the Cincinnati, Ohio area. Consistent with its plan, Respond-
ent expanded its area of operations, and its next job in Feb-
ruary 1988 wag in Louisville, Kentucky.
On this evidence, I find that it was Respondent’s intent
from the outset to operate its asbestos removal business in
interstate commerce, and that by February 1988, when it
took a job in Louisville, Kentucky, there can be no question
but that it was engaged in interstate commerce. Therefore, I
find that at all times material to this case, Respondent was
an employer engaged in commerce, within the meaning of
Section 2(2), (6), and (7) of the Act.
II.
When Terry Estes and several associates decided to go
into the asbestos removal business in 1987, under the name
of U.S. Abatement, Inc., starting out in the Cincinnati, Ohio
area, Estes, who was the principal organizer of Respondent,
relying on his prior experience with unions, both as a mem-
ber and employer, decided to operate his business with em-
ployees to be obtained through a union. To that end, he con-
tacted Richard T. Black, the business manager of Asbestos
Workers Local #8, and in a series of telephone calls and
meetings, advised Black of his need for employees and his
desire to obtain them through the Union. Black presented
Estes with a collective-bargaining agreement, entitled ‘‘Labor
Agreement,’’ to sign, and in August 1987, Estes and Black
signed it for the Respondent and the Union, respectively. Be-
tween November 1987 and February 1988, Respondent per-
formed four asbestos removal contracts in the Cincinnati,
Ohio area, using employees referred by the Union on a
project-by-project basis, and paid wages and fringe benefits
as required under the Labor Agreement with the Union. After
March 1, 1988, Respondent unilaterally stopped paying
wages and fringe benefit payments into the Union’s trust
funds, as specified by the Labor Agreement and other agree-
ments incorporated by reference.
The parties have stipulated that the Labor Agreement
signed by the Union and the Respondent in August 1987 can
be binding upon the Respondent only if it is a valid contract
under Section 8(f) of the Act. Section 8(f) of the Act pro-
vides, in part:
It shall not be an unfair labor practice under subsections
(a) and (b) of this section for an employer engaged pri-
marily 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 organi-
zation of which building and construction employees
are members . . . because (1) the majority status of
such labor organization has not been established under
the provisions of section 9 of this Act prior to the mak-
ing 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 agree-
ment requires the employer to notify such labor organi-
zation of opportunities for employment with such em-
ployer, or gives such labor organization an opportunity
to refer qualified applicants for such employment, or
(4) such agreement specifies minimum training or expe-
rience 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 . . . .
In John Deklewa & Sons, 282 NLRB 1375, 1377–1378
(1987), the Board stated that it would apply the following
principles in 8(f) cases:
(1) a collective-bargaining agreement permitted by
Section 8(f) shall be enforceable through the mecha-
nisms of Section 8(a)(5) and Section 8(b)(3); (2) such
agreements will not bar the processing of valid petitions
filed pursuant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit normally
will be the single employer’s employees covered by the
agreement; and (4) upon the expiration of such agree-
ments, the signatory union will enjoy no presumption of
majority status, and either party may repudiate the 8(f)
bargaining relationship . . . .
The Board, at 282 NLRB 1355–1356, in discussing the prin-
ciples it had adopted, said,
When parties enter into an 8(f) agreement, they will
be required, by virtue of Section 8(a)(5) and Section
8(b)(3), to comply with that agreement unless the em-
ployees vote, in a Board-conducted election, to reject
(decertify) or change their bargaining representative.
Neither employers nor unions who are party to 8(f)
agreements will be free unilaterally to repudiate such
agreements.
. . . .
Even absent an election, upon the contract’s expira-
tion, the signatory union will enjoy no majority pre-
sumption and either party may repudiate the 8(f) rela-
tionship.
Counsel for the General Counsel, in his posthearing brief,
quotes from ‘‘a joint U.S. Department of Commerce and
U.S. Department of Labor ‘Construction Review,’’’ which
gives the following overall definition of construction:
Construction covers the erection, maintenance, and re-
pair (including replacement of integral parts), of immo-
bile structures and utilities, together with service facili-
ties which become integral parts of structure and are es-
sential to their use for any general purpose. . . . Con-
struction covers those types of immobile equipment
which, when installed, become integral part of the
structure and are necessary to any general use of the
structure. This includes such service facilities as plumb-
ing, heating, air-conditioning and lighting equipment,
elevators, and escalators . . . .
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Under Deklewa, supra, the provisions of a master agreement made bind-
ing on Respondent by the signed Labor Agreement may be enforced under
Sec. 8(a)(5) and (1). W. B. Skinner, Inc., 283 NLRB 989 (1987).
13 By a document entitled ‘‘Asbestos Workers’ Agreement,’’ signed on July
14, 1987, the Master Insulators Association and Asbestos Workers Local #8
agreed upon and adopted changes to the Asbestos Workers’ Agreement. One
of the changes agreed upon and adopted was ‘‘Article I to read effective July
1, 1987 expiration on July 1, 1989.’’ Clearly, the changes were to the Asbes-
tos workers’ Agreement of June 21, 1985, to June 10, 1986, and had the effect
of renewing the agreement, with the modifications and changes specified, for
the period from July 1, 1987, to July 1, 1989.
The Charging Party defines the term ‘‘construction indus-
try,’’ as used in Section 8(f), by drawing an analogy to
‘‘construction industry,’’ as used in Section 8(e) of the Act,
which says that ‘‘nothing in this subsection (e) shall apply
to an agreement between a labor organization and an em-
ployer in the construction industry relating to the contracting
or subcontracting of work to be done at the site of construc-
tion, alteration, painting, or repair of a building, structure, or
other work.’’ The determining factor, according to the Charg-
ing Party, is whether the work is done at the jobsite. Since
asbestos removal can be done only at the jobsite, and is pref-
atory to reinsulation of the building or system, the Charging
Party argues that asbestos removal, just as is insulation in-
stallation, is ‘‘construction work.’’
In arguing that Respondent is not primarily engaged in the
building and construction industry, Respondent, in its
posthearing brief, gives the following description of its busi-
ness activities:
USA mops and cleans an area in preparation; creates
temporary air containment barriers as needed; wets and
then removes friable asbestos—or possibly other debris,
such as pigeon droppings; bags the debris; loads it into
wagons or dumpsters; trucks it away; and disposes of
it at an EPA approved hazardous waste site. It is not
in the business of insulating or reinsulating.
Respondent contends that the definitive source for classi-
fication of industry is the Government’s Standard Industrial
Classification Manual (1987). Respondent points out that its
business is not in Division C of the Manual, which covers
the building and construction industry. The Respondent rea-
sons that since the applying of building insulation is listed
in Division C, but removal is not, and Respondent does not
apply insulation or reinsulate, it is not engaged in the con-
struction and building industry. It is engaged in ‘‘building
cleaning and maintenance activities [which] are included in
the non-construction Major Group 73 (Business Services).’’
Terry Estes, Respondent’s president and chairman, de-
scribed asbestos removal as its main line of business. Ac-
cording to Estes, there are two types of asbestos removal
jobs: structural and mechanical. He described a mechanical
job as containing, or encapsulating, a mechanical system,
such as a boiler, then removing and disposing of asbestos
used for hot or cold insulation. Estes said that Respondent
removes asbestos from pipes, fittings, valves, boilers, ducts,
flues, tanks, and vats. Structural work involves removal of
asbestos used for fireproofing and acoustical soundproofing
on building walls, beams, and ceilings. Estes described Re-
spondent’s work as 65 percent structural and 35 percent me-
chanical. Estes said that Respondent does not do any re-
insulation work.
It is evident that the asbestos removal activities in which
Respondent is engaged affect the structure of buildings and
equipment, such as boilers and pipes, which, after installa-
tion, have become an integral part of the structure, itself. As-
bestos removal involves the alteration and repair of buildings
and permanently attached fixtures and equipment. It is read-
ily distinguishable from building maintenance and removal of
waste. Respondent appears to concede that installation of in-
sulation or reinsulation are building and construction industry
activities. Logically, it follows that removal of one type of
insulation, for which another type of insulation is to be sub-
stituted, is a necessary part of the overall insulation installa-
tion or reinsulation process. One essential part of the process
is just as much a part of the construction industry as is the
other. For purposes of the definition of the building and con-
struction industry, as used in Section 8(f), removal and sub-
stitution are but two halves of the whole.
Accordingly, I find that Respondent is an employer pri-
marily engaged in the building and construction industry.
Since it entered into its contractual relationship with the
Union at a time when the Union’s majority status had not
been established, the relationship is governed by Section 8(f)
of the Act. B.F.C. Corp., 285 NLRB 583 (1987); Jack Welsh
Co., 284 NLRB 378 (1987). An agreement permitted by Sec-
tion 8(f) may not be unilaterally repudiated during its term,
and violation of the terms of the collective-bargaining agree-
ment entered into by the Respondent and the Union is an un-
fair labor practice in violation of Section 8(a)(5) and (1) of
the Act. B.F.C. Corp., supra; American Thoro-Clean, 283
NLRB 1107 (1987).
III.
The ‘‘Labor Agreement’’ signed by the Union and Re-
spondent in August 1987 incorporates by reference, and
makes binding upon Respondent, the terms of the ‘‘current
collective bargaining agreement made by the Master
Insulators Association of Cincinnati, Ohio, and the Inter-
national Association of Heat and Frost Insulators and Asbes-
tos Workers, Local No. #8, Cincinnati, Ohio,’’ and any addi-
tions, modifications, or subsequent agreements entered into
by those two parties.12
The current collective-bargaining agreement between the
Master Insulators Association and Asbestos Workers Local
#8, at the time the Respondent and Asbestos Workers Local
#8 entered into their ‘‘Labor Agreement,’’ was the ‘‘Asbes-
tos Workers’ Agreement’’ which covered the period from
July 1, 1987, to July 1, 1989. It was the successor collective-
bargaining agreement to the collective-bargaining agreement
between the Association and the Union covering the period
from June 21, 1985, to June 10, 1986.13 Although there was
no provision in the 1985–1986 Asbestos Workers’ Agree-
ment continuing it in force past its expiration date, the par-
ties had agreed to continue operating in accordance with its
terms and conditions after the expiration date. Charging Par-
ty’s Exhibit CP-2, a letter dated March 11, 1987, signed by
representatives of both parties, informed the International As-
sociation of Heat & Frost Insulators & Asbestos Workers
that they were continuing to operate under the terms of the
expired agreements for the purpose of establishing ‘‘wages
and conditions for Local #8 jurisdiction.’’ The only sub-
stantive changes in the 1987–1989 Asbestos Workers’ Agree-
457U.S. ABATEMENT, INC.
14 The hourly wage rate for mechanics is $18.72, effective July 1, 1987, and
$19.12, effective July 1, 1988. These wage rates represented an increase from
an hourly wage rate of $18.32 for mechanics under the 1985–1986 agreement.
The hourly wage rate for first year apprentices is $7; the hourly wage rate
for asbestos abatement [workers] is the same as the hourly wage rate for first
year apprentices. The hourly wage rates of apprentices and asbestos abatement
[workers] are unchanged from the 1985–1986 agreement to the 1987–1989
agreement.
15 The work covered by the Asbestos Workers’ Agreement includes ‘‘the
preparation, fabrication, alterations, application, erection, assembling, molding,
spraying, pouring, mixing, hanging, adjusting, repairing, dismantling, remov-
ing, reconditioning, maintenance, finishing and/or weather proofing of cold or
hot thermal insulation with such materials as may be specified when these ma-
terials are to be installed for thermal purposes in voids, or to create voids,
or on either piping, fittings, valves, boilers, ducts, flues, tanks, vats, equip-
ment, or on any hot or cold surfaces for the purpose of thermal control. This
is also to include all labor connected with the handling and distribution of
thermal insulating materials on job premises, scaffolding up to 14 feet high
erected by the insulation contractor, and other work that is within the jurisdic-
tion of ‘Local No. 8, Cincinnati, Ohio.’’’
16 Art. X provides that ‘‘[a]pprentices shall equal but not exceed a ratio of
one (1) apprentice to four (4) mechanics in a shop.’’
17 It is no defense to enforcement of the terms and conditions of the Asbes-
tos Worker’s Agreement effective from July 1, 1987, to July 1, 1989, that Re-
spondent’s officers and representatives did not take the trouble to ask for a
copy of the Asbestos Workers’ Agreement, and read it, before signing the
‘‘Labor Agreement’’ which incorporated by reference the terms and conditions
of the Asbestos Workers’ Agreement.
18 Curiously, the ‘‘National Maintenance Agreement,’’ admitted into evi-
dence as C.P. Exh. CP-10, unlike the Asbestos Workers’ Agreement into
which the General Counsel and the Charging Party argue it is incorporated by
reference, contains a union-security clause which requires that ‘‘All employees
hired by the contractor shall, as a condition of employment, become and re-
main members in good standing of the Union within thirty (30) days following
the date of their employment.’’ Another clause of the ‘‘National Maintenance
Agreement’’ could, depending on the ‘‘hiring practices in the territory where
the work is being performed or is to be performed,’’ limit an employer to
seeking employees through the Union before looking elsewhere. These condi-
tions appear to be somewhat inconsistent with the positions taken by both the
General Counsel and the Charging Party that the Respondent was free to seek
employees through any source it chose.
ment concerned the wage rates and fringe benefit rates for
mechanics and apprentices.14
The Asbestos Workers’ Agreement recognizes the Union
as the exclusive collective-bargaining agent for mechanics
and apprentices working within a specified geographical area
when they are engaged in, among other things, removing
‘‘cold or hot thermal insulation.’’15 Article XXII of the
Agreement states:
All asbestos removal shall be performed under the
terms of the National Maintenance Agreement. It is fur-
ther agreed that the mechanic-apprentice ratio16 for as-
bestos removal work shall be as follows: for each me-
chanic employed on asbestos removal work the con-
tractor shall be entitled to employ four Asbestos Abate-
ment people at the first year apprentice rate.
The only evidence of record concerning a ‘‘National
Maintenance Agreement’’ is found in Charging Party’s Ex-
hibit CP-10, consisting of a letter from the International As-
sociation of Heat and Frost Insulators to Jack Barth, Per-
formance Contracting, Inc., of Shawnee Mission, Kansas,
dated January 8, 1987, to which is attached a signed copy
of a document entitled, ‘‘National Maintenance Agreement
(Revised).’’ The ‘‘National Maintenance Agreement (Re-
vised)’’ states that it is an agreement entered into on Decem-
ber 1, 1986, between Performance Contracting, Inc., and the
International Association of Heat and Frost Insulators and
Asbestos Workers. The agreement appears to bear the signa-
tures of the International Association’s president and J. M.
Barth, manager, industrial relations, Performance Con-
tracting, Inc.
It is apparent, and I so find, that the Master Insulators As-
sociation and the Union, by their written agreement on July
14, 1987, renewed the expired 1985–1986 Asbestos Workers’
Agreement, and agreed that the new agreement would be ef-
fective from July 1, 1987, to July 1, 1989, with the modifica-
tions and changes reflected in the July 14, 1987, agreement.
The 1985–1986 Asbestos Workers’ Agreement, as modified
and changed on July 14, 1987, and renewed for the period
from July 1, 1987, to July 1, 1989, wag the ‘‘current collec-
tive bargaining agreement’’ between the Master Insulators
Association and the Union in existence in August 1987,
when the Respondent and the Union entered in their ‘‘Labor
Agreement’’ incorporating by reference the ‘‘current collec-
tive bargaining agreement’’ made by the Master Insulators
Association and the Union. The terms and conditions of the
Asbestos Workers’ Agreement are, therefore, binding upon
the Respondent.17
Not enforceable against the Respondent, however, are the
terms and conditions of the ‘‘National Maintenance Agree-
ment (Revised),’’ admitted into evidence as Charging Party’s
Exhibit CP-10. The reference to a ‘‘National Maintenance
Agreement’’ in article XXII of the Asbestos Workers’ Agree-
ment is vague and indefinite. The ‘‘National Maintenance
Agreement (Revised)’’ which was introduced into evidence
is not a contract between the Master Insulators Association
and either the Union or the International Association of Heat
and Frost Insulators and Asbestos Workers. Since it is not
possible to ascertain from the Asbestos Workers’ Agreement,
itself, what the parties were referring to by use of the term,
‘‘National Maintenance Agreement,’’18 the Respondent can-
not be held to the terms and conditions of the ‘‘National
Maintenance Agreement (Revised), even if through a private
understanding the Union and the Master Insulators Associa-
tion agreed that it was the document referred to in the Asbes-
tos Workers’ Agreement.
By its terms, the Asbestos Workers’ Agreement, effective
July 1, 1987, which was the ‘‘current collective bargaining
agreement’’ between the Master Insulators Association and
the Union at the time the Respondent and the Union entered
into a collective-bargaining agreement incorporating it by
reference in August 1987, expired on July 1, 1989. This con-
tractual relationship between the Respondent and the Union
is governed by Section 8(f) of the Act, and is not subject to
unilateral repudiation. W. L. Miller Co., 284 NLRB 1180,
1181 (1987). However, as the Union did not enjoy a pre-
sumption of majority status following the contract’s expira-
tion on July 1, 1989, at that point Respondent was free to
repudiate the 8(f) bargaining relationship. John Deklewa &
Sons, supra; W. L. Miller Co., supra; Ken Hash Construc-
tion, 283 NLRB 822 (1987). Accordingly, I find that the
Labor Agreement which Respondent signed on August 24,
1987, was binding upon Respondent under Section 8(f) until
July 1, 1989, when it expired, and in accordance with Re-
spondent’s earlier expression of intent, Respondent’s repudi-
ation could first take effect.
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 When asked to describe the Emery Industries job, and the purpose of the
asbestos, Estes said it was a structural job involving a trough that caught drip-
pings from pipes so that the drippings would not go through or melt a pan,
or rot out or rust its bottom.
20 Estes said that in the Cincinnati area Respondent’s work since the Emery
Industries job was 50 percent structural and 50 percent mechanical. He said
that 95 percent of the mechanical work involved taking asbestos off boilers
and the pipe work associated with boilers. The big job, according to Estes,
was the Hughes School, which involved a boiler.
21 The Hughes School job is the only one performed by Respondent which
can be identified by name from the record as bargaining unit work. It is un-
clear from the record when Respondent performed that job.
IV.
Respondent does not dispute that it performed asbestos
abatement jobs in the Cincinnati, Ohio area, after March 1,
1988, and that on these jobs it employed persons who per-
formed at least some of the same type of duties as did me-
chanics and abatement workers referred by the Union for ear-
lier jobs. Respondent admits that it did not pay these workers
at the wage rates required under its Labor Agreement with
the Union, and that it did not make payments for these work-
ers into the Union’s fringe benefit funds.
The next asbestos abatement job performed by Respondent
after it completed the DeYoung residence job in Cincinnati,
Ohio, in February 1988, was the Liberty Bank building in
Louisville, Kentucky, which the Charging Party concedes
was outside the territorial scope of the Labor Agreement with
the Union. The next asbestos abatement job performed by
Respondent in the Cincinnati area was the Emery Industries
job between March 1 and April 1, 1988. According to Terry
Estes, he employed one person on this job who performed
the work of a mechanic, and did work similar to that per-
formed by John Cox, a mechanic referred by the Union who
had worked on some or all of Respondent’s first four jobs.
Estes stated that he also employed abatement workers and
common laborers on the job, and acknowledged that he did
not pay the collective bargaining agreement wage rates or
pay any fringe benefits.
According to Estes, the Emery Industries job was struc-
tural, but did not involve asbestos used for thermal insula-
tion.19 Estes testified that after February 20, 1988, his com-
pany performed ‘‘probably five’’ asbestos removal jobs in
the Cincinnati area involving hot or cold insulation materials.
Estes stated that some of the work after February 20 in-
volved hot or cold thermal insulation on pipes, fittings,
valves, boilers, ducts, flues, tanks, or vats.20
Respondent disputes that the ‘‘work jurisdiction’’ article
(III) of the collective-bargaining agreement extended to the
Emery Industries job. Respondent contends that the bar-
gaining unit work covers only removal of ‘‘cold or hot ther-
mal insulation . . . for the purpose of thermal control,’’ and
that no such work was involved in the Emery Industries job.
Overall, asserts the Respondent, ‘‘about 65% of USA’s as-
bestos removal work does not involve asbestos used as ther-
mal insulation. Rather it involves asbestos used for such pur-
poses as acoustics, looks, and fireproofing.’’
The complaint alleges that at all times since mid-April
1988, Respondent has refused to abide by the collective-bar-
gaining agreement by failing to pay its employees wages and
fringe benefits fund contributions in accordance with the
agreement. The complaint does not make specific reference
to any particular job performed by Respondent.
As previously noted, the work covered by Asbestos Work-
ers’ Agreement, which is incorporated by reference in the
Labor Agreement signed by Respondent, includes the:
repairing, dismantling, removing, reconditioning, main-
tenance, finishing and/or weather proofing of cold or
hot thermal insulation with such materials as may be
specified when these materials are to be installed for
thermal purposes in voids, or to create voids, or on ei-
ther piping, fittings, valves, boilers, ducts, flues, tanks,
vats, equipment or on any hot or cold surfaces for the
purpose of thermal control.
Although the work jurisdiction clause is less than concise,
nevertheless, it is clear from its language that the bargaining
unit work, insofar as removal of asbestos is concerned, in-
cludes removal of asbestos installed for thermal control pur-
poses in voids or to create voids or on any hot or cold sur-
faces for the purpose of thermal control. As Respondent con-
tends, removal of asbestos installed for acoustical purposes,
looks, or fireproofing is not bargaining unit work.
While some of the asbestos removal work performed by
Respondent in the Cincinnati area after February 20, 1988,
may have been related to asbestos used for purposes other
than as thermal control, and therefore may not be bargaining
unit work, by Terry Estes’ own admission, some of the as-
bestos removal work done by Respondent in the Cincinnati
area since February 20, 1988, involved the removal of asbes-
tos installed on mechanical systems for purposes of thermal
control. That work clearly was bargaining unit work falling
under Respondent’s collective-bargaining agreement with the
unit.21
The 1987–1989 8(f) collective-bargaining agreement be-
tween Respondent and the Union requires it to make benefit
fund contributions and pay wage rates established by the col-
lective-bargaining agreement for bargaining unit work. Here,
Respondent has admitted that it unilaterally stopped making
contractually required contributions to the Union’s fringe
benefit funds on behalf of bargaining unit employees, and
stopped paying contractual wage rates to employees per-
forming bargaining unit work, all during the period alleged
in the complaint. In substance, Respondent has admitted that
it unilaterally repudiated the 1987–1989 collective-bargaining
agreement. An 8(f) agreement may not be unilaterally repudi-
ated during its term, and the provisions of the agreement
may be enforced under Section 8(a)(5) and (1). Accordingly,
I find that Respondent has violated Section 8(a)(5) and (1),
as alleged.
The other defenses asserted by Respondent to the allega-
tion that it violated Section 8(a)(5) and (1) are without merit.
The evidence of record does not establish Respondent’s
contention that it was the Union which abrogated the collec-
tive-bargaining agreement. There is no evidence that the
Union failed to provide qualified workmen to the Respondent
as requested in connection with Respondent’s first four jobs.
While Respondent professes dissatisfaction with the avail-
ability and qualifications of some of the workmen referred by
the Union, the Union ultimately was able to satisfy Respond-
ent’s needs and Respondent completed the jobs successfully.
In any event, the Union does not operate a hiring hall, and
did not represent to Respondent that it did, and Respondent
was free to obtain employees from any source he chose.
There is nothing in the collective-bargaining agreement
459U.S. ABATEMENT, INC.
which makes the Union the sole source of employees for Re-
spondent. There was no material misrepresentation by the
Union. Respondent sought employees from the Union on a
job-by-job basis. Respondent could not reasonably have be-
lieved that there was a pool of unemployed qualified workers
available at its beck and call, nor could Respondent reason-
ably have believed that qualified workers already employed
would be willing to quit their employment and go to work
for Respondent for one job of short duration. Under the facts
of this case, I find that the Union substantially met its con-
tractual obligations to Respondent. Respondent’s election to
seek employees elsewhere was one of choice, not necessity,
and did not relieve it of its obligation to comply with the
terms of the collective-bargaining agreement. The abrogation
of its contractual obligations by Respondent was unilateral
and without good cause. There was no bilateral abrogation
of the agreement.
The fact that Respondent may not have hired ‘‘Mechanics
or Apprentices,’’ in the sense of individuals who had com-
pleted a 5-year union apprenticeship and had passed a union
mechanic examination or were enrolled in a union appren-
ticeship program, does not relieve Respondent of its contrac-
tual obligations under the collective-bargaining agreement.
Employees who do bargaining unit work are covered by the
collective-bargaining agreement, regardless of their title. It is
the work an employee does, and not the title he uses, which
determines whether he is a member of the bargaining unit.
Here, Respondent admits that it employed people who per-
formed the same functions as ‘‘mechanics’’ and ‘‘abatement
workers,’’ both of which are categories of employees making
up the bargaining unit under the collective-bargaining agree-
ment. It is immaterial whether Respondent called them super-
visors or common laborers, or by any other title.
V.
Union Business Manager Black testified that he sent his
April 4, 1988 letter to the Respondent, requesting a list of
abatement workers and abatement specialists employed by
Respondent at the Emery Industries jobsite, and the wage
rates paid to them, after he was informed by a union member
that Respondent was working on the Emery Industries job.
According to Black, he wanted the information to determine
if the Respondent was paying benefits for these employees.
Black acknowledged that at the time he knew or felt that the
Union was not receiving benefit fund contributions from the
Respondent.
There is no dispute that Respondent has not provided the
requested information to the Union.
It is well established that an employer must provide to a
union, on request, information ‘‘relevant in carrying out its
statutory responsibilities.’’ NLRB v. Acme Industrial Co., 385
U.S. 432, 437 (1967). In W. L. Molding Co., 272 NLRB
1239, 1240 (1984), the Board summarized the applicable
law:
[A] broad discovery-type standard is applicable to re-
quests for information relevant to a union’s functions of
negotiating and policing compliance with a collective-
bargaining agreement. NLRB v. Acme Industrial Co.,
385 U.S. 432, 437 (1967); General Motors v. NLRB,
700 F.2d 1083, 1088 (6th Cir. 1983); NLRB v. Rock-
well-Standard Corp., 410 F.2d 953, 957 (6th Cir.
1969). ‘‘[I]t is not the Board’s function in this type
case to pass on the merits of the Union’s claim that Re-
spondent breached the collective-bargaining agreement
or . . . committed an unfair labor practice.’’ NLRB v.
Rockwell-Standard Corp., 410 F.2d at 957. ‘‘Thus, the
union need not demonstrate actual instances of contrac-
tual violations before the employer must supply infor-
mation.’’ Boyers Construction Co., 267 NLRB 227, 229
(1983). ‘‘Nor must the bargaining agent show that the
information which triggered its request is accurate, non-
hearsay, or even ultimately reliable.’’ Ibid. ‘‘The
Board’s only function in such situation is in ‘acting
upon the probability that the desired information was
relevant, and that it would be of use to the union in
carrying out its statutory duties and responsibilities.’’’
NLRB v. Rockwell-Standard Corp., 410 F.2d at 957,
quoting NLRB v. Acme Industrial Co., 385 U.S. at 437.
Accord: General Motors v. NLRB, 700 F.2d at 1088.
[Footnote ommitted.]
Information pertaining to wages, hours, and working con-
ditions of bargaining unit employees is presumptively rel-
evant. Western Massachusetts Electric Co. v. NLRB, 573
F.2d 101 (1st Cir. 1978), enfg. 228 NLRB 607 (1977); San
Diego Newspaper Guild. v. NLRB, 548 F.2d 863, 867 (9th
Cir. 1979); Telepromter Corp. v. NLRB, 570 F.2d 418 (1st
Cir. 1977); Procter & Gamble Mfg. Co. v. NLRB, 603 F.2d
1310, 1315 (8th Cir. 1979). The burden is on the Respondent
to establish that presumptively relevant wage and benefit in-
formation is not relevant. NLRB v. Borden, Inc., 600 F.2d
313, 317 (1st Cir. 1979), enfg. in pertinent part 235 NLRB
982 (1978); San Diego Newspaper Guild v. NLRB, supra.
The Union has met its initial burden of showing relevance.
It had information that the Respondent was performing an as-
bestos abatement job, for which it was not making benefit
fund contributions, as required under the collective-bar-
gaining agreement. The information sought by the Union in
this case is relevant to whether or not any work being per-
formed by Respondent’s employees at the Emery Industries
job was bargaining unit work under Respondent’s collective-
bargaining agreement with the Union. The Union need not
demonstrate that the collective-bargaining agreement had
been violated before it is entitled to the information which
it requested. Under ‘‘a liberal discovery-type standard,’’ it
need only show, as it has done, that the requested informa-
tion has ‘‘some bearing’’ on whether the Respondent was
complying with its contractual obligations.
Accordingly, I find that the Union is entitled to receive the
information it requested in its letter of April 4, 1988, to the
Respondent, and that by its refusal to supply that informa-
tion, Respondent violated Section 8(a)(5) and (1) of the Act.
VI.
Respondent argues that the charge was untimely because
it was not filed until September 6, 1988, more than 6 months
after the Respondent ‘‘repudiated whatever agreement there
was and gave rather public notice’’ of the repudiation. I find
that argument unpersuasive.
Section 10(b) of the Act provides that ‘‘no complaint shall
issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board and the service of a copy thereof upon the person
against whom such charge is made.’’
The charge in this case was received by the Board on Sep-
tember 6, 1988. Respondent does not deny that it wag served
with a copy. The 10(b) period, therefore, began 6 months
earlier, on March 6, 1988. Respondent contends that by rea-
son of an employment advertisement for insulation workers,
at $15 per hour with a minimum of 2 years’ experience, and
common laborers, at $10 per hour, which it placed in the
Cincinnati Enquirer (a Cincinnati, Ohio newspaper), on Feb-
ruary 17 and 18, 1988, it gave notice to the Union that it
had repudiated the collective-bargaining agreement. Respond-
ent contends that its Respondent’s Exhibit R-6, which is a
letter from Dick Black, the Union’s business manager, to
U.S. Abatement, Inc., attention Terry Estes, dated February
19, 1988, shows that the Union knew that the Respondent
had repudiated the collective-bargaining agreement, because
in the letter, Black noted that the advertisement did not re-
flect the wage scale for asbestos workers under the signed
bargaining agreement, and told the Respondent that ‘‘anyone
employed by U.S. Abatement Inc. doing work that is listed
in Article 3 of the Agreement shall receive pay and com-
pensation as stated in the Asbestos Workers Agreement.’’
The Board has held that the 6-month limitation period is
tolled where the unlawful conduct is of a continuing nature.
In Al Bryant, Inc., 260 NLRB 128 (1982), the Board held
that abnegation of a collective-bargaining agreement is a
continuing violation under Section 10(b). The Board has held
that each failure during the term of an existing collective-bar-
gaining agreement to pay contractually required periodic ben-
efit fund payments is a separate and distinct violation of an
employer’s bargaining obligation. Chemung Contracting
Corp., 291 NLRB 773 (1988), citing Farmingdale Iron
Works, 249 NLRB 98 (1980), enfd. mem. 661 F.2d 910 (2d
Cir. 1981). The Board has also held that the 6-month limita-
tion period may be tolled where the charging party does not
have actual or constructive knowledge of the unfair labor
practice. Metromedia, Inc.-KMBC-TV, 232 NLRB 486
(1977).
The newspaper want ad placed by the Respondent was nei-
ther actual nor constructive notice to the Union that Re-
spondent had abrogated the collective-bargaining agreement
with the Union. The Union responded to the advertisement
by reminding the Respondent of its obligations, as the Union
saw them, under the collective-bargaining agreement. There
is no evidence that the Union knew that the Respondent had
actually hired workers for jobs covered by the collective-bar-
gaining agreement at wages other than specified in the agree-
ment. As all parties agree, the Respondent had no obligation
under the collective-bargaining agreement to seek employees
only through the Union, or, for that matter, to even consult
the Union before looking elsewhere for employees; the
Union admittedly did not operate a hiring hall, and there is
nothing in the Asbestos Workers’ Agreement which requires
an employer to request the Union to supply employees.
Under these conditions, more than a newspaper want ad of-
fering wages possibly at odds with the collective-bargaining
agreement is required before it can be said that the Union
had either actual or constructive knowledge that Respondent
had abrogated or abnegated the collective-bargaining agree-
ment.
While it appears that Terry Estes indicated to Richard
Black, on one or more occasions prior to April 14, 1988, that
Respondent wanted a voluntary rescission of the collective-
bargaining agreement, it is evident from Respondent’s April
14, 1988 letter, signed by Leslie J. Ungers, Respondent’s
vice president, addressed to Black, that Respondent did not
consider the matter to have been settled as of that time. Re-
ferring to Black’s agreement to bring the matter of a vol-
untary rescission of the contract before the Union’s executive
board, Ungers stated: ‘‘It is really ashame that this has not
been working out and I hope that we can bring this matter
to a speedy conclusion for the best interest of all.’’
I find, therefore, that as late as April 14, 1988, which is
well within the 6-month limitation period, the Union had nei-
ther actual nor constructive knowledge that Respondent had
renounced the collective-bargaining agreement and was no
longer complying with its terms and conditions. Since the
Union did not have actual or constructive notice of violations
of the Act by Respondent as of April 14, 1988, it is unneces-
sary to consider whether the alleged violations were con-
tinuing in nature. J. P. Sturrus Corp., 288 NLRB 868
(1988). Accordingly, the charge in this case was not un-
timely under Section 10(b) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, U.S. Abatement, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Asbestos Workers Local Union #8, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. A collective-bargaining agreement existed between U.S.
Abatement, Inc., and Asbestos Workers Local Union #8, ef-
fective August 24, 1987, through July 1, 1989.
4. All mechanics, apprentices, and other persons per-
forming work similar to that performed by mechanics and
apprentices, constituted an appropriate unit of Respondent’s
employees for the purpose of collective bargaining under the
Act.
5. By repudiating its 1987–1989 collective-bargaining
agreement with the Union and withdrawing recognition from
the Union during the term of the collective-bargaining agree-
ment, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
6. By failing to make contractually required fringe benefit
contributions for its employees to the Union’s health and
welfare, pension, and apprenticeship funds, and by failing to
pay contractual wage rates, all during the term of a valid col-
lective-bargaining agreement under Section 8(f) of the Act,
Respondent violated Section 8(a)(5) and (1) of the Act.
7. By refusing during the term of its 1987–1989 collective-
bargaining agreement with the Union, to supply the Union,
on request, relevant information required under the terms of
the collective-bargaining agreement and necessary for it to
administer the collective-bargaining agreement properly, the
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
8. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
461U.S. ABATEMENT, INC.
22 In accordance with the Board’s decision in New Horizons for the Re-
tarded, supra, interest on and after January 1, 1987, shall be computed at the
‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 622.
23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
24 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I find that the Respondent must be ordered
to cease and desist and to take certain affirmative action to
effectuate the policies of the Act.
Respondent, having engaged in certain unfair labor prac-
tices in violation of Section 8(a)(5) and (1) of the Act, shall
be ordered to cease and desist from engaging in these unfair
labor practices.
Respondent, having failed to bargain collectively and in
good faith with the Union by unilaterally ceasing to make
contractually required contributions on behalf of the unit em-
ployees to the Union’s health and welfare fund, pension
fund, and apprenticeship fund, for the period from August
24, 1987, through July 1, 1989, shall make whole the unit
employees by making contributions on their behalf to the
Union’s said funds, for the period from August 24, 1987,
through July 1, 1989, and by reimbursing them for expenses
incurred due to the failure to make such contributions in ac-
cord with Kraft Plumbing & Heating, 252 NLRB 891
(1980).
Respondent, by failing to pay bargaining unit employees
contractually established wage rates, during the period from
August 24, 1987, through July 1, 1989, shall make the em-
ployees whole, as prescribed in Ogle Protection Service, 183
NLRB 689 (1970), for any losses they may have suffered as
a result of the Respondent’s failure to adhere to the contract
since August 24, 1987, with interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).22
Respondent, having refused to timely furnish requested rel-
evant information to the Union, shall furnish to the Union
the information requested in the Union’s letter of April 4,
1988, to the Respondent.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, U.S. Abatement, Inc., Hamilton, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to supply the Union, on request, relevant in-
formation required under the terms of the 1987–1989 collec-
tive-bargaining agreement with the Union and necessary for
the Union to administer the collective-bargaining agreement
properly.
(b) Refusing to bargain collectively with the Union by fail-
ing and refusing, without the consent of the Union, to make
contractually required payments on behalf of its employees
to the Union’s health and welfare fund, pension fund, and
apprenticeship fund for the period from August 24, 1987,
through July 1, 1989.
(c) Refusing to adhere to any other terms of its 1987–1989
collective-bargaining agreement with the Union, including
those provisions concerning rates of pay, during the period
from August 24, 1987, through July 1, 1989.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union with the information which it re-
quested in its letter of April 4, 1988.
(b) Pay all delinquent contributions to the Union’s health
and welfare fund, pension fund, and apprenticeship fund, for
the period from August 24, 1987, to July 1, 1989.
(c) Make whole its employees, in the manner set forth in
the remedy section of this decision, for any losses they may
have suffered as a result of the Respondent’s failure to ad-
here to its collective-bargaining agreement with the Union
from August 24, 1987, until it expired on July 1, 1989.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Hamilton, Ohio, and at any other
facilities it may operate, copies of the attached notice marked
‘‘Appendix.’’24 Copies of the notice, on forms provided by
the Regional Director for Region 9, 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 conspicuous places including all
places where notices to employees and members are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT, during the term of a collective-bargaining
agreement, repudiate that agreement and withdraw recogni-
tion from the International Association of Heat and Frost
Insulators and Asbestos Workers, Local Union #8, AFL–
CIO, as the exclusive collective-bargaining representative of
our employees covered by the agreement.
WE WILL NOT refuse to bargain collectively with the Inter-
national Association of Heat and frost Insulators and Asbes-
tos Workers, Local Union #8, AFL–CIO, as the exclusive
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative of our employees in the
appropriate unit, by failing and refusing, upon request, to
timely furnish it with relevant information reasonably nec-
essary to the administration of the agreement.
WE WILL NOT fail to pay wage rates established in a col-
lective-bargaining agreement between us and the Union.
WE WILL NOT fail to make contractually required contribu-
tions to the Union’s fringe benefit funds on behalf of all our
employed covered by a collective-bargaining agreement be-
tween us and the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL make whole our employees, the Union, and the
fringe benefit funds for any losses they may have suffered
as a result of our failure to comply with our collective-bar-
gaining agreement with the Union, from August 24, 1987,
until the expiration of the agreement on July 1, 1989.
WE WILL comply with the terms of our collective-bar-
gaining agreement with the Union in effect from August 24,
1987, to July 1, 1989.
U.S. ABATEMENT, INC.