Wehr Constructors

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 867 (N.L.R.B. 1994)

867
315 NLRB No. 129
WEHR CONSTRUCTORS
1 On March 31, 1993, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The General Counsel filed
exceptions and a supporting brief. The Respondent filed cross-excep-
tions and a brief in support of cross-exceptions and in response to
the General Counsel’s exceptions. The General Counsel filed an an-
swering brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 Amounts owed by the Respondent to employees whom it unlaw-
fully paid a lower wage rate shall be computed as set forth in Ogle
Protection Service, 183 NLRB 682 (1970), with interest to be com-
puted as set forth in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Member Stephens agrees that the Respondent violated Sec. 8(a)(5)
and (1) of the Act by virtue of its delayed and incomplete responses
to the Union’s requests for information in December 1990, and that
the Respondent should be required to furnish all of the contractual
documents therein requested in view of their obvious relevance to
the issue of how much carpentry work was potentially within the
Respondent’s power either to perform through its own employees or
to subcontract to other firms. Because of the Respondent’s failure to
promptly furnish all of those requested documents and its cryptic
and misleading references to its status on the various projects, the
Union was justified in seeking additional information about the Re-
spondent’s operations. Member Stephens agrees with the Respond-
ent, however, that a number of the items requested in the Union’s
so-called ‘‘A/B/C questionnaire’’ sent on January 4, 1991, and re-
affirmed in subsequent letters, and the Union’s request for records
going back several years ranged beyond what was needed for mean-
ingful bargaining. Thus, Member Stephens would not require the Re-
spondent to supply those additional documents if it supplies, in com-
plete form, all documents encompassed by the Union’s December
1990 requests and if those documents fully explain the Respondent’s
potential control over carpentry work in projects in which it was in-
volved.
Wehr Constructors, Inc. and Kentucky State Dis-
trict Council of Carpenters, AFL–CIO. Cases
9–CA–27465, 9–CA–27540, 9–CA–27549, 9–CA–
27762, 9–CA–28008, 9–CA–28137, 9–CA–28140,
and 9–CA–28435
December 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The issues in this case include: whether the adminis-
trative law judge correctly found that the Respondent
violated Section 8(a)(5) of the Act by unilaterally sub-
contracting bargaining unit work, by refusing to fur-
nish subcontracting information requested by the
Union, and by refusing to bargain with the Union in
good faith; whether the judge correctly denied a make-
whole remedy for the Respondent’s unlawful sub-
contracting; and, whether the judge correctly found
that the Respondent did not violate Section 8(a)(1) of
the Act by soliciting employees to resign from the
Union in exchange for increased benefits.1 The Board
has considered the decision and the record in light of
the exceptions and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions, except as
modified below, and to adopt the recommended Order
as modified.3 For the reasons set forth below, we find
merit in the General Counsel’s exception to the judge’s
failure to grant a make-whole remedy for the Respond-
ent’s unlawful subcontracting. We also find merit in
the General Counsel’s exception to the recommended
dismissal of the Section 8(a)(1) allegation regarding
the Respondent’s solicitation of resignations from the
Union.
1. On January 3, 1991, at a meeting held in anticipa-
tion of a strike, the Respondent’s project manager,
Paul Hinson, read a memorandum to assembled car-
penters. The memorandum stated, in part:
If a strike or a picket is in place and you desire
to continue to work for Wehr, do not cross the
line until you have submitted a letter of resigna-
tion to the Union. This will prevent any fines
from being levied. We will resolve and work out
your benefits immediately so that you will not
lose important coverage.
At another meeting held around the same date, one
of the Respondent’s carpenters asked what benefits he
would receive if he resigned from the Union. In re-
sponse, Project Manager Gary Brooks distributed to
unit employees a letter ‘‘to confirm our agreement as
you leave the Carpenter’s Union and switch to our
fringe benefits.’’ The letter listed several benefits
which unit employees did not currently receive.
The judge discounted the memorandum and the let-
ter as mere factual statements by the Respondent re-
garding the benefits that unit employees would receive
if they resigned from the Union. The judge erred, how-
ever, by equating union membership with unit em-
ployee status. Whether or not the Respondent’s car-
penters chose to remain members of the Union during
a strike, they would remain employees in the unit rep-
resented by the Union. The Respondent would be obli-
gated to maintain current benefits for those employees
unless and until it bargained in good faith to agreement
or to impasse with the Union about proposed changes
in benefits. Accordingly, the Respondent’s prestrike
letter effectively promised unit employees that the Re-
spondent would unilaterally provide them with new
benefits if they resigned from the Union. We conclude
that the Respondent violated Section 8(a)(1) of the Act
by soliciting employees to abandon the Union in ex-
change for greater benefits.
We note that the General Counsel has not contended
in his exceptions that the memorandum also violated
Section 8(a)(1) by suggesting that employees had to
resign from the Union in order to return to work dur-
ing a strike.
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We note in arguing its ‘‘oral agreement’’ contention, the Re-
spondent relies on a district court decision that was reversed on ap-
peal. Merk v. Jewel Food Stores, 702 F.Supp. 1391 (N.D. Ill. 1988),
revd. 945 F.2d 889 (7th Cir. 1991), cert. denied 488 U.S. 956
(1992). The Respondent’s argument is also contrary to Board prece-
dent, which does not permit evidence of oral agreements that conflict
with the written terms of a collective-bargaining agreement. NDK
Corp., 278 NLRB 1035 (1986). Accord: F. G. Lieb Construction
Co., 311 NLRB 810, 812 (1993), and cases there cited.
5 The judge also failed to recommend the customary expunction
remedy for the Respondent’s unlawful discharge of employee David
Keith. See Sterling Sugars, 261 NLRB 472 (1982). We shall add the
appropriate language to the Order and notice.
2. In adopting the judge’s conclusion that the Re-
spondent violated Section 8(a)(5) of the Act by unilat-
erally changing its subcontracting practices, we do not
rely on that part of the judge’s analysis which is based
on Nolde Bros. Inc. v. Bakery Workers, 350 U.S. 243
(1977). We do agree, however, that the judge correctly
rejected the Respondent’s contention that its sub-
contracting practices after the Union’s certification
amounted simply to an unchanged continuation of the
Respondent’s previous lawful subcontracting practices;
and therefore we find no merit to the Respondent’s
present contention that its unilateral postcertification
subcontracting was lawful under Westinghouse Electric
Corp., 150 NLRB 1574 (1965).
In Westinghouse, the Board held that the employer
acted lawfully in failing to bargain over each individ-
ual act of subcontracting where those actions were en-
tirely consistent with a practice that had been know-
ingly acquiesced in by the union over many years of
bargaining. (The union had frequently sought a change
in the practices; it would finally, however, sign collec-
tive-bargaining agreements that put no constraints on
the subcontracting but granted other benefits to assure
job security.) Id. at 1577. In the present case, as the
judge found, the 1986–1989 contract between the par-
ties had prohibited the Respondent from subcontracting
contractually covered work to employers that would
not sign the agreement, and the term of that contract
was the most recent period showing the Respondent’s
practices within a collective-bargaining relationship.
The Respondent’s contention that its subcontracting
practices had been governed by an oral agreement be-
tween it and the Union that was contrary to the plain
language of their 1986–1989 written agreement, was
properly rejected by the judge, who credited testimony
that the Respondent’s own representative admitted in
1987, when confronted by the Union over a breach of
the subcontracting clause, that there was no such oral
agreement.4 Westinghouse is therefore inapposite.
AMENDED CONCLUSION OF LAW
Add the following Conclusion of Law 11.
‘‘11. By promising employees increased benefits in
exchange for their resignation from the Union, the Re-
spondent violated Section 8(a)(1) of the Act.’’
AMENDED REMEDY
Although the judge found that the Respondent vio-
lated Section 8(a)(5) of the Act by subcontracting bar-
gaining unit work on various projects subsequent to
the Union’s certification as the employees’ bargaining
agent, he declined to recommend a make-whole rem-
edy for this violation ‘‘[b]ecause the record does not
reveal which unit employees were adversely affected
by this practice.’’ The General Counsel has excepted
on this point. We find merit in this exception.
The import of the judge’s statement is that the Gen-
eral Counsel failed to show that unit employees would
have been employed on the projects in question had
the Respondent complied with its bargaining obliga-
tion. The judge is incorrect for two reasons. First, the
determination of which employees are entitled to be
made whole in these circumstances is customarily a
compliance matter. Dean General, 285 NLRB 573
(1987); Wayne Electric, 226 NLRB 409 fn. 3 (1976).
Consequently, the General Counsel had no obligation
to litigate a compliance issue about affected employees
in the initial unfair labor practice stage of this proceed-
ing. Second, the judge’s reasoning presumes that the
Respondent, faced with union signatory limitations,
would necessarily have subcontracted unit work to
union signatory employers. The judge has ignored the
possibility that the Respondent would have chosen to
perform some or all of the work itself with its own
unit employees. As the wrongdoer, the Respondent
bears the burden of showing that it would not have
performed unit work under these circumstances. See
D.S.E. Concrete, 303 NLRB 890, 899 (1991). Accord-
ingly, we shall direct that the Respondent make whole,
with interest, any employees who suffered losses of
wages and other benefits as a consequence of the Re-
spondent’s unlawful subcontracting.5
ORDER
The National Labor Relations Board orders that the
Respondent, Wehr Constructors, Inc., Louisville, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to lay off employees because of
their union activities.
(b) Discharging, refusing to recall, or otherwise dis-
criminating against, employees because of their union
activities.
(c) Failing and refusing to bargain collectively con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment, including subcontracting
and access to jobsites, with the Union as the exclusive
representative of the employees in the following unit,
869WEHR CONSTRUCTORS
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
which is appropriate for the purpose of collective bar-
gaining:
All journeymen and apprentice carpenters em-
ployed by the Respondent at jobsites within the
State of Kentucky, including foremen, excluding
all other building trades craftsmen, office clerical
employees and all professional employees, guards,
and supervisors as defined in the Act.
(d) Subcontracting bargaining unit work at its con-
struction projects without bargaining in good faith with
the Union.
(e) Failing and refusing to comply with the Union’s
demand for relevant information.
(f) Paying lower or light commercial rates to the
employees without bargaining in good faith with the
Union.
(g) Denying or restricting access of union officials
to unit employees at the Respondent’s jobsites, without
bargaining with the Union in good faith.
(h) Soliciting employees to resign their union mem-
bership by promising them increased benefits.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of its employees in an appropriate
unit, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an
agreement is reached, embody it in a collective-bar-
gaining agreement.
(b) Offer David Keith immediate and full reinstate-
ment to his former job, or if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed, and make him whole, with interest,
for any loss of earnings and other benefits suffered as
a result of the discrimination against him.
(c) Remove from its files any reference to the un-
lawful discharge and refusal to recall David Keith and
notify him in writing that this has been done and that
the discharge and refusal to recall will not be used
against him in any way.
(d) Rescind its unilateral implementation of policies
relating to the Union’s access to jobsites, the payment
of lower or light commercial wage rates, and the sub-
contracting of unit work.
(e) Make whole, with interest, all unit employees for
any loss of earnings or other benefits suffered as a re-
sult of the Respondent’s unlawful unilateral implemen-
tation of new pay rates and subcontracting practices.
(f) Provide the Union information which it has pre-
viously requested and which is relevant and necessary
to the performance of its duties as a bargaining rep-
resentative.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its Louisville, Kentucky facility copies of
the attached notice marked ‘‘Appendix.’’6 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 Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to lay off employees because
of their union activities.
WE WILL NOT discharge and refuse to recall, or oth-
erwise discriminate against, employees because of their
union activities.
WE WILL NOT fail and refuse to bargain collectively
concerning rates of pay, wages, hours, and other terms
and conditions of employment, including subcontract-
ing and access to jobsites, with Kentucky States Dis-
trict Council of Carpenters, AFL–CIO (the Union) as
the exclusive representative of our employees in the
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
following unit, which is appropriate for the purpose of
collective bargaining:
All journeymen and apprentice carpenters em-
ployed by us at jobsites within the State of Ken-
tucky, including foremen, excluding all other
building trades craftsmen, office clerical employ-
ees and all professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT subcontract bargaining unit work at
our construction projects without bargaining in good
faith with the Union.
WE WILL NOT fail and refuse to comply with the
Union’s demand for relevant information.
WE WILL NOT pay lower or light commercial rates
to our unit employees without bargaining in good faith
with the Union.
WE WILL NOT deny or restrict preexisting access of
union officials to unit employees at the Respondent’s
jobsites, without bargaining in good faith with the
Union.
WE WILL NOT solicit employees to resign their union
membership by promising them increased benefits.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the rights guar-
anteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of our employees in an appro-
priate unit, with respect to rates of pay, wages, hours,
and other terms and conditions of employment, and, if
an agreement is reached, WE WILL embody it in a col-
lective-bargaining agreement.
WE WILL offer David Keith immediate and full rein-
statement to his former job, or if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and WE WILL make him whole,
with interest, for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him.
WE WILL remove from our files any reference to the
unlawful discharge and refusal to recall David Keith
and WE WILL notify him in writing that this has been
done and that the discharge and refusal to recall will
not be used against him in any way.
WE WILL rescind our unilateral implementation of
policies relating to the Union’s access to jobsites, the
payment of lower or light commercial wage rates, and
the subcontracting of unit work.
WE WILL make whole, with interest, all unit employ-
ees for any loss of earnings or other benefits suffered
as a result of our unlawful unilateral implementation of
new pay rates and subcontracting practices.
WE WILL provide the Union information which it
has previously requested and which is relevant and
necessary to the performance of its duties as a bargain-
ing representative.
WEHR CONSTRUCTORS, INC.
Andrew L. Lang and Garey E. Lindsay, Esqs., for the Gen-
eral Counsel.
Andrew J. Russell and James U. Smith III, Esqs. (Smith &
Smith), of Louisville, Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. These
cases were tried on October 8 and November 4–8, 1991, in
Louisville, Kentucky. The charges were filed by Kentucky
State District Council of Carpenters (the Union) in the fol-
lowing cases: Case 9–CA–27465 on April 19, 1990, Case 9–
CA–27540 on May 22, 1990, Case 9–CA–27549 on May 25,
1990, Case 9–CA–27762 on August 10, 1990, Case 9–CA–
28008 on November 8, 1990, Case 9–CA–28137 on Decem-
ber 19, 1990, Case 9–CA–28140 on December 20, 1990, and
Case 9–CA–28435 on April 9, 1991. Based on these charges,
the General Counsel issued his fifth consolidated amended
complaint on June 5, 1991, alleging that the Respondent,
Wehr Constructors, Inc., violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act) by acts such
as (a) threats to lay off employees and to subcontract with
nonunion contractors; (b) having union representatives re-
moved from the jobsite; (c) encouraging employees to resign
from the Union, (d) promising benefits for employees’ res-
ignation from the Union; (e) discharging and failing to recall
employee David Keith, a union steward; (f) restricting and
prohibiting the Union’s access to the jobsite; (g) subcontract-
ing bargaining unit work; (h) paying lower than agreed to
wage rates on certain projects; (i) refusing to furnish relevant
information to the Union; (j) refusing to bargain in good
faith with the Union; and (k) violating the terms of a settle-
ment agreement. The Respondent filed timely answers to the
complaints in which the jurisdictional allegations of the com-
plaints are admitted and the substantive allegations of the
complaints are denied.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Wehr Constructors, Inc., is a corporation,
located in Louisville, Kentucky, where it is engaged as a
contractor in the building and construction industry. With
purchases and receipts of products and goods at its Louis-
ville, Kentucky facilities valued in excess of $50,000 from
points outside the State, the Company is admittedly an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Union, Kentucky State Dis-
trict Council of Carpenters, is admittedly a labor organization
within the meaning of Section 2(5) of the Act.
871WEHR CONSTRUCTORS
II. FACTS
Wehr Contractors is one of the largest general contractors
in the Louisville, Kentucky area (R. Exh. 7). It has a history
of bargaining with the District Council of Carpenters, the
Operating Engineers Union, and the Laborers Union. In
1980, Wehr withdrew its membership in an employer asso-
ciation (AGCR) which had negotiated with the Carpenters
Union, and, thereafter, Wehr continued to bargain individ-
ually. The last collective-bargaining agreement between the
parties expired May 31, 1989 (G.C. Exh. 2). Prior to its expi-
ration, contract negotiations for a successor agreement were
initiated by the Union in December 1988. In response to the
Company’s letter notifying the Union that it would no longer
recognize the Union after the expiration of the contract, the
Union on May 30, 1989, filed a petition for certification and
was certified by the Board as the exclusive representative for
the carpenters (G.C. Exh. 4). The principal negotiators, Law-
rence Hujo, the Union’s director of organizing, and James
Smith, an attorney for the Company, met 4 times before May
31, 1989, and approximately 12 times thereafter without
reaching an agreement (Tr. 107–110). The principal issue to
be resolved was the subject of subcontracting. The expired
contract contained the following provision (G.C. Exh. 2, Tr.
113):
1.10: SUB-CONTRACTING—The signatory contractor,
who sub-contracts any portion of the work within the
jurisdiction of the Union, agrees he will not sub-con-
tract to any person, firm, or corporation, unless the
aforesaid person, firm, or corporation performing the
sub-contract work in question, agrees to observe and be
bound by all of the terms and conditions of this Agree-
ment.
The Union recognizes that the Employer is free to
sub-contract work which is not of the type coming
within the jurisdiction of the United Brotherhood of
Carpenters and Joiners of America, Incorporated, as set
forth in Section 1.3 of this Article, to Employers who
are not signatory to this Agreement.
During the negotiations, the Respondent wanted to change
the clause and have ‘‘the right to subcontract interior systems
work and case work to non-signatory companies’’ (Tr. 113).
The ‘‘subcontracting’’ issue was not a novel problem for
the parties. The same issue was raised by the Company prior
to the expired contract. For example, the Respondent referred
to a prior addendum to the contract (addendum I) (R. Exh.
4, Tr. 992–1000). Addendum I was made a part of the col-
lective-bargaining agreement prior to the 1986 contract and
was intended to provide the Company with the necessary
flexibility to deal with subcontracting problems. However, in
subsequent negotiations for the 1986 contract, the Company
took the position stated by Wehr’s president, Claude Berry
(Tr. 1001–1002):
They [union officials] insisted that Addendum One
was a workable solution to the problem, and I did not
believe that it was.
It had not worked in the past and I did not think that
it would work in the future. I did not want to consider
Addendum One as a solution to the problem.
The Respondent had therefore notified the Union in 1986
that it would not sign a contract containing the restrictive
subcontracting clause even with the addendum proviso. The
union representatives, Garrison and Phelps, met with Claude
Berry. According to Berry, the union officials assured him
that they had not caused any trouble about the subcontractor
clause in the past and promised: ‘‘We will not in the future,
if you will call us and inform us when it is necessary for
you to use a non-union subcontractor, let us know about it,
give us a chance to have someone else respond and see if
they can be competitive. If they cannot, you’ll have no trou-
ble in the future as you have had no trouble in the past’’ (Tr.
1004).
In the belief that a ‘‘gentlemen’s agreement’’ had been
reached allowing subcontracting to nonunion firms so long as
the Union was notified permitting it to submit a competing
bid, the Respondent signed the collective-bargaining agree-
ment (Tr. 1005–1006). Berry explained this agreement as fol-
lows (Tr. 1005–1006):
The only provision was to notify Mr. Garrison—or I
don’t know if his name was mentioned, I took it that
we were supposed to notify Mr. Garrison, if the bids
on a project came in and a non-union subcontractor was
the low bidder, we were to notify Mr. Garrison of that
fact, and give him an opportunity to have someone who
was signatory to his contract give us another quote, if
he could.
In spite of the subcontracting clause in the contract, the Re-
spondent subcontracted with nonunion companies, primarily
for drywall and casework (Tr. 1006). However, in practice,
the Company failed to notify the Union, giving it ‘‘an oppor-
tunity to have someone who was signatory to [the] contract
give . . . another quote’’ (Tr. 1006).
In 1987, Steve Barger was the executive secretary and
business manager of the Union. He requested the Respondent
to comply with the written terms of the contract and objected
to the Company’s use of nonunion subcontractors. Berry re-
ferred to the ‘‘gentlemen’s agreement,’’ but Barger stated
that he was unaware of such an agreement. Barger insisted
and Berry agreed that the contract barred nonunion sub-
contractors (Tr. 1009).
When in December 1988, Lawrence Hujo became the
Union’s negotiator, it was clear during the initial bargaining
sessions that subcontracting was again the major issue. Berry
informed the Union that it was unwilling to sign another con-
tract with the subcontracting clause and the Union responded
by saying that it was willing to negotiate to find a solution
(Tr. 109–112, 1015–1022).
On March 5, 1990, Wehr submitted a contract proposal ac-
cording to which the ‘‘Company may subcontract any por-
tion of its work coming within the jurisdiction of the Union
to any’’ subcontractor ‘‘when such work can be performed
on a more economical or efficient basis’’ (Tr. 125, G.C. Exh.
208, p. 9). This proposal differed from the Company’s earlier
verbal proposals which sought subcontracting concessions in
the area of ‘‘interior systems and case work’’ and which
comprised 60 to 80 percent of the carpenter work (Tr. 121–
122). The Union proposed that the Company would be per-
mitted to subcontract to nonsignatory employers so long as
these subcontractors payed union rates or the equivalent of
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union rates and benefits (Tr. 120). Neither of the proposals
was acceptable to the parties.
At the next meeting on April 11, 1990, a Federal mediator,
Joe Kirkham, attempted to assist the negotiations. However,
his suggestion for a joint committee to award bids to sub-
contractors was rejected by James Smith, Wehr’s negotiator
(Tr. 129). The Union suggested a ‘‘think tank’’ composed of
management and union representatives to resolve the issue.
The Company rejected that suggestion at the next meeting.
The Union demanded a written definition for ‘‘casework’’ a
term used by the Company for work specifically identified
for subcontracting. Smith, who initially agreed to provide
that information to the Union, however, failed to provide the
requested information (Tr. 131).
The parties did not hold any bargaining sessions until De-
cember. In the meantime, the Union had received informa-
tion that Wehr was in the process of subcontracting carpenter
work on projects such as Humana Suburban. Trying to find
out the extent of subcontracting difficulties with Wehr’s cus-
tomers, the Union sent written requests dated December 12,
1990, to the Respondent for copies of contracts between
Wehr and 21 of its contractors (G.C. Exhs. 14(a)–(u)). The
letters signed by Hujo, identified the specific job by firm and
job number and explained that the ‘‘significant issue pre-
sented during the negotiations has been subcontracting’’ and
therefore relevant. By letter of December l4, the Union also
requested a list of bidders invited by Wehr for a Humana
Hospital project (Tr. 134; G.C. Exh. 15). The Company’s re-
sponse, drafted by Attorney Smith in a letter of December
17, 1990, questioned the relevancy of the information and
postponed any consideration of the request to a negotiation
meeting scheduled for December 28, 1990 (G.C. Exh. 16).
During the meeting on December 28, Smith emphasized
that subcontracting was the major issue and questioned
whether a way could be found to resolve the issue without
having to provide the information requested by the Union.
The Union had proposed the ‘‘think tank,’’ but Smith again
rejected the proposal, and stated that he was not interested
in having everybody in the universe involved with the prob-
lems between Wehr and the Union. Believing that 90 percent
of the work was subcontracted to nonunion companies, the
Union again stressed the relevancy of its information request
(Tr. 135, 140). But Smith said that the Company had no con-
trol over the subcontractors. The parties scheduled another
meeting for January 2, 1991, and agreed to submit proposals
and counterproposals (Tr. 141).
The January 2 meeting was a surprise to the union rep-
resentatives. First, Smith was accompanied by his brother,
his law partner, second, Smith presented the Union with
Wehr’s ‘‘last, best and final offer’’ which contained at least
two provisos never discussed before, a ‘‘light commercial
rate’’ provision and a ‘‘most-favored nations’’ clause (Tr.
144, G.C. Exh. 17). The Union questioned these provisos and
offered 5 provisions as counterproposals, all of which were
rejected by Wehr’s representatives (Tr. 147; G.C. Exh. 18).
The Union did not accept the Company’s proposal. However
it repeated its demand for the information which had been
requested earlier. Smith did not produce copies of the con-
tracts or other documents, instead, he gave a verbal response
to some of the questions (Tr. 142). In Hujo’s words, the
meeting ended as follows (Tr. 149):
It ended, Mr. Smith gave us a deadline and he told
us that we had to contact him by, I believe it was six
p.m. on Sunday, and let us know whether–-or let him
know. I’m sorry, whether we accepted or rejected his
last, best and final. And that if we didn’t respond by
then, they would take it as though we had rejected it
and we would be at impasse.
On January 2, 1991, the same day of the negotiations’
meeting, Hujo wrote to the Company and Smith a letter stat-
ing that Wehr had made an incomplete verbal response to its
information requests and that it was making a second request
for the same information (G.C. Exh. 19). In the letter, the
Union took issue with the Company’s response that no con-
tracts existed with respect to certain projects and stated that
without the requested information, it was unable to respond
by January 6, 1991, or consider the Company’s last, best,
and final offer. The Company responded by letter of January
3, 1991, purporting to supply information about a few of the
projects identified by the Union. None of the project con-
tracts, however, were provided (G.C. Exh. 20). The Union
considered the response to be inadequate (Tr. 158). By letter
of January 4, 1991, the Union sent another request for infor-
mation to Wehr (G.C. Exh. 22). Accusing the Company of
playing ‘‘lawyer’s games,’’ the request was aimed at defin-
ing the role of Wehr as ‘‘general contractor,’’ as a ‘‘con-
struction manager’’ or as a ‘‘subcontractor.’’ These concepts
were used by Smith in his prior letter of January 3, and re-
ferred to Wehr’s capacity in various projects. The Union sent
a further letter dated January 4, 1991, to Wehr acknowledg-
ing receipt of some documentary information but the Union
emphasized that the information was still incomplete and in
many areas incorrect (G.C. Exh. 23). Of the 23 projects
about which it had requested the subcontracting information,
the Company had made approximately 10 responses, and
Hujo explained in the letter at least 9 instances in which
Wehr gave inadequate responses (Tr. 161). Smith’s reply of
January 9, 1991, contained more detailed information, as
well as copies of construction contracts. It also accused the
Union of a ‘‘disguised attempt to harass the Company’’ and
claimed that the information provided exceed the Union’s in-
formation request (G.C. Exh. 24). Hujo, however, testified
that the response was still incomplete and that ‘‘we were get-
ting bits and pieces of our request a little bit at a time’’ (Tr.
162).
In letters of January 15 and 17, 1991, to Wehr the Union
wrote that the information provided was still insufficient and
that omitted were about 15 projects listed in the earlier re-
quest and added another project (G.C. Exhs. 25, 26). Smith
replied with a two-page letter of January 18, 1991, explain-
ing Respondent’s function as contractor and stating that the
manufacture and installation of casework is frequently con-
trolled by the subcontractor as shown by an attachment re-
ferred to as the Heisler letter (G.C. Exh. 27). The Respond-
ent also emphasized that the Union had until January 20 to
accept or reject its ‘‘last, final and best proposal.’’
The Union again disagreed with the Respondent that all
the information had been supplied, or that the parties were
at an impasse in the negotiations. By letter of January 18,
1991, Hujo reiterated the need for all requested information
and expressed hope that an agreement could be reached
pointing out that the parties had never even discussed two
873WEHR CONSTRUCTORS
important provisions, one dealing with most-favored nation
conditions and the other a proposal for light commercial rates
(G.C. Exh. 28).
Smith’s three-page letter of January 22, 1991, declared
that the parties had reached an impasse because the Union
had not responded to the Company’s offer. The letter also of-
fered additional information and declined to participate in
any assisted mediation (G.C. Exh. 29). Although the Union
had requested a list of invited subcontractors for the
‘‘Humana Suburban outpatient lobby and lab extension,’’
Smith’s letter did not respond to that request even though
such a list existed according to Hujo’s testimony (Tr. 168–
172).
The Company sent a series of letters, beginning with one
dated January 23, 1991, to the Union notifying it of a spe-
cific construction project quoting a reduced hourly rate for
carpenters, referred to as ‘‘light commercial’’ rates, and giv-
ing the Union an opportunity to bid for the work (G.C. Exh.
30). The Union repeated its information requests for con-
tracts on its projects in its continued efforts of obtaining in-
formation relating to Wehr’s contracting and subcontracting
practices by letter of January 25, 1991 (G.C. Exh. 31).
Among the items were bid specifications for an attached list
of 19 projects as well as documentation showing the total of
carpenter hours worked on these projects (G.C. Exh. 31, Tr.
182).
The parties met at Smith’s office on January 28, 1991, for
a negotiation session. Smith made available to Hujo three
boxes full of documents including requested bid specification
(Tr. 184–185). The union representatives were unable to re-
view all the materials and was unable to copy relevant por-
tions. (G.C. Exh. 32.)
Hujo examined the documents more completely on a sub-
sequent day in February (Tr. 189). The documents revealed,
according to Hujo, that, contrary to Respondent’s prior rep-
resentations, the bid specifications of the property owners did
not require that casework be installed by the manufacturer,
and second that the bid specification generally did require a
written ‘‘contract between the owner and the successfully
bidder,’’ and third that the bid specifications required daily
and weekly progress reports (Tr. 190–204). Wehr disputed
Hujo’s interpretation of the meaning of the provision in the
typical bid specifications regarding the installation of case-
work. It provides: ‘‘Provide hospital case work with tops
manufactured or furnished by same hospital case work com-
pany for single responsibility’’ (Tr. 207). The Union also felt
that progress reports sometimes known as superintendent’s
daily reports, would be necessary information relevant to the
issue of subcontracting.
By letter of January 29, 1991, the Union replied to Wehr’s
request to use ‘‘light commercial rate’’ pay on its projects
(G.C. Exh. 33). According to the letter, ‘‘the work in ques-
tion would not appear to be qualified for designation as ‘light
commercial,’’’ but for a more definitive answer, the Union
demanded to know the amount of bargaining unit work
which would be subcontracted by its own carpenters (G.C.
Exh. 33). The Union also expressed its willingness to go
along with the Company’s request if it will ‘‘certify in writ-
ing that [it] will observe the subcontracting conditions of the
1986–1989 contract.’’ Hujo’s letter of January 30, 1991, re-
peated its demand of information, particularly the super-
intendent’s daily reports, as well as the identity of and the
hours worked by subcontractors in Wehr’s projects (G.C.
Exh. 35). Smith replied by letter of January 30, 1991, in
which he briefly explained the types of projects for which
Wehr would submit bids and the procedure it follows in so-
liciting bids (G.C. Exh. 36). The letter also repeatedly re-
ferred to the Heisler letter as an explanation of Wehr’s han-
dling of the manufacture and installation of casework and
further stated that the Humana organization will award sub-
contracts to the lowest bidder ‘‘irrespective of union affili-
ation.’’
The Union insisted in its letter of January 31, 1991, that
the Company had not provided the information showing:
‘‘What work within the jurisdiction of the [Union] does
Wehr intend to perform with their own forces and what does
Wehr intend to subcontract’’ (G.C. Exh. 37). The letter em-
phasized the significance of the information because ‘‘sub-
contracting of bargaining unit work has a tremendous effect
on prospective job opportunities for [its] bargaining unit
members.’’ The Company’s response of January 31, 1991,
indicated that Wehr would submit bids for work in certain
areas, including demolition, concrete, earthwork, and rough
and finish carpentry, and it would also receive bids from
subcontractors for the same areas of work. If its bids would
not be competitive with those of qualified subcontractors,
then it would submit the lowest bids even if it was not its
own bid (G.C. Exh. 38). In the same letter, Wehr indicated
that without the light commercial rates it would not be com-
petitive and it therefore renewed its request for the Union’s
consent for the lower rate of pay. Hujo sent a short reply on
February 1, 1991, expressing disagreement with the lower
pay scale without Wehr’s assurance that carpenter work will
be performed by unit employees employed by the Respond-
ent or by a signatory subcontractor (G.C. Exh. 39). The
Union’s letter of February 1, 1991, acknowledged receipt of
copies of contracts on certain projects and repeated its re-
quests for the bid specifications on certain other projects
(G.C. Exh. 40).
Wehr promptly replied on February 4, 1991, stating that
it would not agree that all work on the Humana projects be
performed by unit employees because it ‘‘would be incon-
sistent with the Company’s general practice regarding sub-
contracting’’ (G.C. Exh. 41). Smith, writing on behalf of
Wehr, also stated that absent other suggestions from the
Union, the parties were at an impasse so that Wehr would
use the light commercial rate on the projects and also pro-
posed that the Company’s contract proposal be changed to
reflect the application of the light commercial rate to all
projects of $1 million or less. The Union expressed its dis-
agreement with Wehr’s claim of an impasse in a letter of
February 5, 1991, and accused the Respondent of bad-faith
bargaining (G.C. Exh. 42).
Vice President Berry wrote the Union on February 4,
1991, stating that the Company would not attempt to submit
bids on a particular project because of the Union’s refusal to
permit the application of the lower pay scale. He also stated:
‘‘Therefore, the entire job can go non union and we will
alert our personnel as to your posture’’ (G.C. Exh. 43).
Smith’s letter of February 5, 1991, retracted the substance of
the Berry letter, but stated that the Company would be un-
successful in winning any bids on certain projects if it were
to proceed in line with the Union’s proposals (G.C. Exh. 44).
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter of February 14, 1991, Hujo made another request
for information on behalf of the Union, stating that it had
previously requested the information on a number of occa-
sions but never received it (G.C. Exh. 45). The letter listed
seven projects and requested contracts between Wehr and the
owners of the projects. The letter also demanded such infor-
mation as superintendents’ daily reports, subcontracts, and
bid lists. The Union sent a request for information on Feb-
ruary 21, 1991, to Wehr demanding contract information on
24 projects performed between May 1986 and May 1989.
The information requested in that letter for contracts, sub-
contracts, and superintendents reports had not been made be-
fore and was deemed necessary because it could permit a
comparison of subcontracting information during the periods
before and after the expiration of the collective-bargaining
agreement. Hujo testified as follows (Tr. 245–46):
We knew that they were basically subcontracting at
will to non union companies now. We figured if we
could get the man hours worked under the protection of
a subcontracting clause versus the man hours worked
without the protection, then we could make an compari-
son and come up with an idea of what we’re talking
about.
If we’re talking about ten percent of the total man
hours on these jobs, maybe subcontracting’s not as sig-
nificant as we thought. But if we’re talking about
eighty percent being subbed out, maybe it’s more sig-
nificant than we thought.
On March 28, 1991, Hujo on behalf of the Union, sent its
‘‘Final Demand for Information’’ to Wehr stating that it had
repeatedly requested information concerning subcontracting
and that Wehr had furnished some of the requested material
but refused to provide all the requested documentation (G.C.
Exh. 47). The letter states, inter alia, as follows:
We have, since that time, made further requests
dated February 14 (Certified Mail No. P 791-171-308)
and February 21, 1991 (Certified Mail No. P 791-171-
313). You have made no response whatsoever to either
our request dated February 14, 1991 or our request
dated February 21, 1991. You have had more than a
month in which to respond; you have communicated no
excuses and we demand production of this documenta-
tion immediately.
To document further what information you have pro-
duced and have not produced, we are enclosing our
‘‘Final Union Document Demand.’’
Due to the importance of the issue of ‘‘subcontract-
ing’’ and your regrettable failure to adequately docu-
ment previous assertions made by Wehr representatives
or you, we have, in fact, been deprived of good faith
collective bargaining by these failures. If we are re-
quired to file a charge with the National Labor Rela-
tions Board, the charge will not only be to compel pro-
duction, but also for this obvious and continued failure
to negotiate in ‘‘good faith.’’
We will agree to the terms which you previously es-
tablished for the production of the limited ‘‘bid speci-
fication materials’’ you previously produced in that we
will (l) come to your offices, (2) allow the Wehr rep-
resentative to remain with the original documents, (3)
designate which documents we want copied and (4) pay
the fee of $0.15 per page for photocopying.
We expect you to make the information available in
your office during the week of April 18, 1991 for our
inspection and copying. Please advise when this infor-
mation can be reviewed during that week.
Smith replied by letter of April 11, 1991, in which he
promised that ‘‘to the extent that the requested information
has not already been provided to you and is otherwise avail-
able and relevant, the Company is in the process of compil-
ing the requested data’’ (G.C. Exh. 48). Smith disagreed with
the Union about the relevancy of certain information, he ac-
cused the Union of ‘‘an effort to harass the Company and
infringe the negotiation process,’’ and expressed the position
‘‘that these negotiations . . . have been at an impasse for
sometime.’’
Hujo, by letter of May 2, 1991, acknowledged the Compa-
ny’s assurance to provide the information and stated that ‘‘to
date, you have not provided any further information’’ and
that it disagreed with the motion that an impasse had been
reached. The Union also repeated the reasons for and the rel-
evancy of some of the requested material (G.C. Exh. 49).
The Respondent finally made most of the requested mate-
rial available to the Union in late May 1991 in Smith’s office
(Tr. 284). Until then, the Respondent had made inadequate
responses, according to Hujo. The ‘‘responses came out over
a period of time,’’ some of which Smith had provided orally
at the bargaining session. Others ‘‘came a little bit at a time
over a period from January to May’’ (Tr. 284). However,
with respect to the Union’s last request for information on
24 projects during 1986 and 1989, Hujo testified as follows:
‘‘We haven’t received it to date, no, sir’’ (Tr. 252).
Analysis
I.
The complaint alleges that the Respondent violated the Act
by failing to provide copies of all contracts, superintendent’s
daily and/or weekly reports, subcontracts, construction man-
ager agreements, and other documents concerning 25 named
projects performed between May 1986 and May 30, 1989.
The Union made this request by letter of February 21,
1991 (G.C. Exh. 46). By letter of March 28, 1991, the Union
made a final demand for information repeating earlier de-
mands, as well as the February 21, 1991 request (G.C. Exh.
47). The Company’s response, dated April 11, 1991, de-
scribed the information sought for the 1986 to 1989 period
as irrelevant (G.C. Exh. 48). It is not disputed that the Com-
pany refused to provide the information, stating, in sub-
stance, that the request amounted to ‘‘a campaign of harass-
ment’’ requiring a tremendous burden on the Company with-
out disclosing any information relevant to the Union (R. Br.
87–90).
The record shows, as already stated, that from the begin-
ning of the bargaining, the issue of subcontracting prevented
the parties from reaching an agreement. The Union wanted
to know how extensive the practice was and to what extent
Wehr controlled the practice of dealing with nonunion firms.
To that end, the Union’s request was relevant. But the Re-
spondent did not make an immediate attempt to disclose the
information to the Union. Not until May 1991 did the Re-
875WEHR CONSTRUCTORS
spondent make available to the Union the bulk of the infor-
mation it had requested since December 1990. The Respond-
ent could have done so earlier and avoided the extensive ex-
change of letters.
The Union’s initial request of December 12, 1990, for con-
tracts between Wehr and owners on 21 projects was designed
to elicit information about Wehr’s subcontracting practices.
The Company’s response did not include the actual contracts.
Not until May 1991 did the Company make many of their
contracts available to the Union (Tr. 286; G.C. Exhs. 55–58,
64–73). And some of the requested contracts material was
not supplied until much later when the General Counsel in-
vestigated this case (G.C. Exhs. 139–141, 144–164).
For example, Smith in his several responses (January 3, 9,
and 18, 1991) enclosed documents showing that notwith-
standing the contract between Wehr and the owners, the
owners of the project and not Wehr retained control over the
subcontracting of carpenter work including casework (G.C.
Exhs. 20, 24, 27). A typical attachment conveying that no-
tion was a letter dated January 8, 1991, from Doug Heisler
relating to all Humana projects which stated as follows (G.C.
Exh. 27):
Several questions have arisen recently regarding con-
tracting and subcontracting procedures on Humana
projects. As in the past, Wehr will solicit multiple sub-
bids for each category of work involved. Wehr shall at-
tempt to pre-qualify major contractors prior to bid date
as required in the project specifications.
Also consistent with our past practice, the selection
of sub-bidders shall not be based on the fact that the
firm is either union or non-union. Humana’s interest is
only that subcontractors are qualified to accomplish the
scope of work involved.
No subcontracts are to be executed until Humana has
approved the subcontractors. Humana reserves the ex-
clusive right to reject any subcontract bid or sub-
contractor in all trade areas on any Humana project for
any reason.
Additionally in the area of casework, i.e. nurses’ sta-
tions, doctors’ desks, credenzas, bookshelves, cabinets
and other finish wood trim, Wehr shall only obtain bids
from manufacturers of such products who are des-
ignated by Humana. The installation of such casework
shall be the obligation of the manufacturer.
The other attachment, written by Sister Regina on behalf
of the Little Sisters of the Poor relating to a project known
as St. Joseph’s Home for the Aged, similarly, provided:
Wehr has been advised by the Owner and both parties
agree by this Supplemental Agreement, that notwith-
standing the contract the Owner, not Wehr, will retain
control and responsibility for soliciting bids and award-
ing and authorizing contracts for certain specific site
work.
These attachments not only raised the question as to Wehr’s
status as ‘‘general contractor’’ or as ‘‘construction manager’’
with regard to a specific project, but in general it raised the
issue to what the extent was Wehr in control of selecting and
negotiating with subcontractors. Much of the information
which the Respondent provided showed or was designed to
show to the Union that Wehr had little or no control over
subcontractors. Moreover, the Union still lacked the actual
copies of contracts or subcontracts. Accordingly by letters of
January 17 and 18, 1991, the Union repeated its request for
more information stating flatly ‘‘the Company hadn’t given
us what we asked for’’: These requests also showed that the
Union wanted to explore in what capacity Wehr performed
the work, whether as a general contractor or as a construc-
tion manager. Moreover, Wehr had informed the Union that
Humana, one of the owners, had prequalified subcontractors
for drywall, casework, and flooring work on all Humana
Suburban projects. Yet Wehr selected and negotiated con-
tracts with these subcontractors. The Union was therefore in-
terested whether a subcontractor used union or nonunion
labor. The Union seemed increasingly frustrated with the
complexity of Wehr’s contracting practices, the criterion
which Wehr used in dealing with subcontractors and the fail-
ure of the Respondent to provide copies of the requested
documentation. It is true, as the Respondent argues, that the
Union’s requests changed by expanding its request for con-
tracts on certain projects to subcontractors on those projects
and bid lists or lists of invited contractors. However, Wehr’s
responses to the Union’s information requests often raised
more questions because of the complexity of the inter-
relationships between Wehr, on the one hand, and its cus-
tomers or owners on the other, as well as the subcontractors’
relationship to Wehr or the owners.
By letter of January 25, 1991, the Union requested sub-
contracts, bid specifications, performance bonds, and bond
applications on approximately 19 previously identified
projects. As already stated, the Respondent disclosed some of
the information in May 1991 in Smith’s office. For example,
several documents relating to Wehr’s Humana University
projects were disclosed (G.C. Exhs. 59–73). However, some
of the requested information was not provided until the Gen-
eral Counsel obtained these documents during the course of
the investigation (G.C. Exhs. 144–151, 155–158).
Finally, the Union’s request on February 21, 1991, for
subcontracting information during the effective period of the
collective-bargaining agreement was a new and far-reaching
request. However, in view of the Company’s complex and
varied practices of using subcontractors, it is not unreason-
able or irrelevant. Wehr’s objections are based on its position
that the request is burdensome and not relevant to the Union
or certainly not sufficiently relevant ‘‘that it reasonably
might cause the Union to change its bargaining position on
the subcontracting issue’’ (R. Br. p. 90).
The Union might disagree, however, if it finds that Wehr
has avoided the contractual restrictions on subcontracting
even during the effectiveness of the contract. In any case, the
standard to support a request for information relevant to the
Union’s duties is a liberal discovery type standard. Walter N.
Yoder & Sons v. NLRB, 745 F.2d 531, 535 (4th Cir. 1985).
Wehr, as any employer, has an obligation to comply with a
Union’s request for information that will assist the Union in
fulfilling its responsibility as the employees’ statutory rep-
resentative. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). And a failure to provide relevant information on re-
quest is a breach of the employer’s duty to bargain in good
faith and violates Section 8(a)(1) and (5) of the Act. The in-
formation sought here is certainly relevant because it has
some bearing on the issue for which the information is re-
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint was amended to reflect that date (Tr. 7).
quested and has probable or potential relevance to the
Union’s duties. Pfizer, Inc., 268 NLRB 916, 918 (1984).
Here, the Respondent appeared more interested in providing
limited information designed to fashion conclusions for the
Union than in furnishing the requested data in the form of
copies of contracts and subcontracts and superintendent daily
reports, etc., from which the Union can draw its own conclu-
sions. If the Union concludes, based on the information it has
already received, that Wehr has subcontracted at will since
the expiration of the contract, particularly in the light of its
position that it was no longer bound by the terms of the ex-
pired contract following Wehr’s notification to the Union, it
is clear that the Union should be in a position to compare
Wehr’s subcontracting practices during the effectiveness of
the collective-bargaining agreement. I accordingly find that
the Respondent’s refusal to furnish the requested information
to the Union violated Section 8(a)(1) and (5) of the Act.
II.
The complaint alleges as violations of Section 8(a)(1) and
(5) of the Act that (a) since August 4, 1989, the Respondent
has subcontracted bargaining unit work at various projects
such as Humana Suburban MRI, Medical Center at Bowling
Green, Farmer’s Deposit Bank, renovations at Respondent’s
offices Henry County High School and two other Humana
projects, and (b) since June 19, 1990, Wehr has paid employ-
ees reduced ‘‘light commercial’’ wage rates at Farmers De-
posit Bank, Humana Suburban Speaker Corporation jobsites,
without having afforded the Union an opportunity to nego-
tiate and bargain as the bargaining representative of Re-
spondent’s employees.1
The record shows and the Respondent does not contest the
allegation that Wehr subcontracted bargaining unit work at
various projects including those listed in the complaint since
the expiration of the collective-bargaining agreement on Au-
gust 4, 1989, without affording the Union to bargain the
issue. For example, the record contains the contracts and sub-
contracts entered into by Wehr after August 4, 1989, on
projects such as the Medical Center at Bowling Green (G.C.
Exhs. 55–57, 144–151), the Henry County High School
(G.C. Exh. 102), the Farmers Deposit Bank (G.C. Exh. 108–
110), and Humana Suburban MRI (G.C. Exhs. 63–65). In-
deed, the Respondent listed numerous projects, admitting that
it contracted with nonunion subcontractors to perform work
falling within the jurisdiction of the Union (R. Exh. 1). The
Respondent offers a number of arguments that its practice in
this regard did not violate the Act.
The record also shows by way of stipulation that ‘‘since
June 1990, the Respondent has paid its carpenter employees
reduced light commercial wage rates’’ at various projects, in-
cluding the Farmer’s Deposit Bank, the Humana Suburban
MRI, Wehr’s office renovation, and Emminence Speaker
Corporation Warehouse (Tr. 561).
To be sure, when the collective-bargaining agreement ex-
pired, the Union no longer enjoyed the presumption of ma-
jority status and either party could repudiate the 8(f) bargain-
ing relationship. John Deklewa & Sons, 282 NLRB 1375
(1987). However, here the Union filed its petition pursuant
to Section 9 of the Act on May 30, 1989 (G.C. Exh. 3). And
on August 4, 1989, the Union was certified as the exclusive
bargaining representative for Respondent’s carpenters. During
that time, that is prior to the expiration of the contract, dur-
ing the pendency of the Section 9 process and after certifi-
cation, the parties met and engaged in collective bargaining
during which the issue of subcontracting was admittedly the
major issue. Throughout these negotiations, the Union never
abandoned its position that subcontracting was a mandatory
subject of bargaining. Indeed, it is well settled that an em-
ployer’s subcontracting practices under these circumstances
is a mandatory subject of bargaining. Fibreboard Corp. v.
NLRB, 379 U.S. 203 (1964). Wehr’s conduct in subcontract-
ing bargaining unit work on projects within the jurisdiction
of the Union without affording the Union the opportunity to
bargain is therefore a violation of Section 8(a)(1) and (5) of
the Act. Century Air Freight, 284 NLRB 730 (1987). There,
as here, the employer’s decision to subcontract the work did
not alter its basic operation, the work still had to be done
and the employer replaced its own employees with those of
an independent contractor to do the same work. Wehr clearly
made the decision on economic grounds. Moreover, Wehr
cannot claim that bargaining would be futile, for the record
shows that the Union proposed several options to resolve the
subcontracting issue.
I find the Respondent’s arguments to the contrary not per-
suasive. Stating that Wehr was justified in relying on past
practice and subcontract at will, citing the few months from
June to August 1989 while the Union was in the process of
certification ignores years of past practice during the effec-
tiveness of the bargaining agreement. In any case, even dur-
ing the few months when Wehr’s practice was not to sub-
contract all of its carpentry work, it subcontracted bargaining
unit work on a selective basis. Under these circumstances,
subcontracting bargaining unit work did not loose its status
as a mandatory subject of bargaining, particularly here where
the issue of subcontracting was the principal issue during the
negotiations.
Finally with respect to the Company’s practice during the
effectiveness of the contract, Wehr argues repeatedly that it
had arrived at an oral agreement which modified the contrac-
tual provision. For example, the Respondent states that ‘‘the
oral agreement made in Berry’s office required no such ad-
vance permission’’ from the Union for use of nonunion sub-
contractors (R. Br. 15). The Respondent’s reference is to
Berry’s testimony about a conversation with the union rep-
resentatives at the time Wehr signed the bargaining agree-
ment in 1986. According to Berry the union representatives
assured him that the Union wanted no trouble ‘‘if you
[Wehr] will call us and inform us when it is necessary for
you to use a nonunion subcontractor, let us know about it,
give us a chance to have someone else respond and see if
they can be competitive.’’ (Tr. 1004.) This conversation–-
even if it could be construed as a verbal agreement—is not
tantamount to the proposition that the Union proposed ‘‘that
a clause go in the contract for appearance purposes but agree
that the clause will not be enforced’’ (R. Br. 101). In actual-
ity, the union representatives thereby only indicated that
Wehr—if confronted with a subcontracting issue—should no-
tify the Union to afford it the opportunity to be competitive.
In any case, under the circumstances here, it is clear that
Wehr knowingly signed a collective-bargaining agreement
which in clear and unambiguous language provided in sub-
stance that Wehr could subcontract bargaining unit work to
877WEHR CONSTRUCTORS
only those firms which agreed to be bound by the terms of
the agreement. Indeed, in early 1987, Union Representative
Barger protested Wehr’s subcontracting practice and re-
minded Berry to abide by the terms of the agreement. At that
time, Berry did not disagree with the Union’s interpretation
of the collective-bargaining agreement (Tr. 1008–1009).
The Respondent has advanced a number of additional
agreements to the effect that its subcontracting practice did
not contravene past practice. For example, the Union is ac-
cused of an unlawful refusal to bargain when it reminded
Wehr to abide by the terms of the written agreement without
consideration of the so called gentlemen’s agreement, and it
is also argued that the subcontracting clause is unlawful
under Section 8(e) of the Act (R. Br. 93, 104). I find these
arguments to be without merit. Moreover, I find that irre-
spective of past practices, Wehr’s conduct of subcontracting
bargaining unit work on certain projects without affording
the Union an opportunity to bargain, to be unlawful under
Section 8(a)(5) and (1) of the Act, particularly where, as
here, that issue was the principal point of contention between
the parties during the negotiations.
Finally, I find that the Respondent’s unilateral application
of the light commercial rates for its carpenters on certain
projects to be unlawful. After the negotiations for a new col-
lective-bargaining agreement were inconclusive, the Com-
pany requested the Union’s consent to use e lower rates and
the Union refused. The parties had not reached an impasse
in their negotiations, Wehr’s claim to the contrary notwith-
standing. Indeed, the issue was never discussed during the
negotiations. Unilateral changes by an employer during the
course of a collective-bargaining relationship concerning
wages and other mandatory subjects of bargaining are con-
sidered per se refusals to bargain and violations of Section
8(a)(1) and (5) of the Act. NLRB v. Katz, 369 U.S. 736
(1962).
III.
The complaint alleges that on or about April 12, 1990, the
Company’s president, Claude Berry, threatened to lay off
employees and replace them with nonunion employees and
threatened to subcontract Respondent’s work to nonunion
contractors if further unfair labor practice charges were filed
against the Company.
The record shows that in April 1990 Ronald Herp, the
Union’s business agent, called Claude Berry by telephone to
complain about the Company’s reduced wages for its car-
penter employees on a project known as the Ballard House.
According to Herp, Berry ‘‘said that he would lay off every-
body’’ because of the ‘‘harassing tactics by the Union . . .
through the labor board . . . [and] frivolous labor changes
and complaints’’ (Tr. 748). Berry also stated that ‘‘he would
not ever sign an agreement that had sub-contracting in it’’
(Tr. 751). These statements by the Company’s president were
not denied by the Respondent, but it submits that these com-
ments do not rise to the level of a violation of the Act (R.
Br. p. 128). Contrary to the Respondent’s position, I find a
violation of Section 8(a)(1) of the Act, because threats to dis-
charge employees because of the Union and the Board’s
processes is a classic interference with the employees’ Sec-
tion 7 rights.
IV.
According to the complaint, since February 8, 1990, the
Respondent has restricted access of union representatives to
the employees at their jobsites, on about May 19, 1990, the
Respondent prohibited the Union’s access to the employees
jobsites, on May 22 the Respondent summoned the police to
remove union representatives from its jobsite, and on or
about July 27, 1990, the Respondent imposed restrictions on
the Union’s access to the employees’ jobsites.
The record shows that union representatives had unre-
stricted access to Wehr’s jobsites to confer with union stew-
ards pursuant to article 1.6 of the collective-bargaining agree-
ment (G.C. Exh. 2). This practice continued after the expira-
tion of the contract and after the Union’s certification on Au-
gust 4, 1989. According to Hujo, the Union had not encoun-
tered any problems with access to the jobsite, stating, ‘‘as a
matter of courtesy whenever we go on any jobsite . . . we’ll
stop in at the construction office or the construction trailer
and just let the superintendent or someone know we’re
there’’ (Tr. 420).
However, by letter of February 8, 1990, Wehr informed
the Union ‘‘that unless the Union’s reason for being on the
project is for purposes related to administration with whom
the Union has a contractual relationship, access will be de-
nied’’ and if ‘‘there is a legitimate reason for the Union’s
presence on a Wehr project, please report to Wehr’s project
trailer and advise our Project Superintendent of the general
nature of your business and the approximate length of your
stay’’ (G.C. Exh. 5). The Union objected to these conditions
as a unilateral change in established working conditions and
filed a grievance by letter of February 13, 1990 (G.C. Exh.
6). The Company responded by letter of February 15, 1990,
and referring to the expiration of the collective-bargaining
agreement stated, inter alia:
The Company’s denial of access to Company projects
by Herp, other than as articulated in the letter is not a
change in working conditions. Rather it is the denial of
a privilege which the union at one time enjoyed but
which it longer enjoys.
Although the Respondent acknowledged in the letter that
the right of visitation is a mandatory subject of bargaining,
it maintained that it can only be granted pursuant to a new
agreement (G.C. Exh. 7).
On May 16, 1990, Hujo and Herp went to the Little Sis-
ters of the Poor jobsite in response to a call from the stew-
ard, David Keith, that there were problems with the toilets
and the drinking water. Hujo and Herp signed the sign-in
sheet at the trailer (G.C. Exh. 10). They looked for the
project manager, Lonnie Malone, and happened to see Keith.
Malone approached the men and told them that the business
agent had no right to talk to the men without first obtaining
his permission (Tr. 426–427). Hujo informed Malone that the
steward had reported problems at the jobsite, namely unsani-
tary toilets and insufficient drinking water. Malone escorted
the union men to the trailer where they discussed the matter
with Virgil Parrish, one of the project managers. On the fol-
lowing day May 17, 1990, Hujo and Herp again visited the
jobsite in response to Keith’s report that Malone was
harassing him about his work. The union representatives
signed in at the trailer, discussed the new problem with the
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
project superintendent, Dick Pennick, and Malone. During
the break, they also spoke with Keith who informed them
that he was assigned to perform an exceptionally dangerous
scaffolding job. Hujo and Herp returned to the trailer where,
during the ensuing discussion, Pennick suggested that the
Union appoint a new steward and insinuated that Keith
would be fired (Tr. 433–439).
By letter of May 17, 1990, Wehr’s representative, Smith,
accused the union representatives of interfering with the em-
ployees working on the Little Sisters of the Poor project and
of delaying the construction of the project. The letter stated,
inter alia, that until an agreement is reached, ‘‘neither you
nor Herp nor any other representative of the carpenters
Union will be permitted access to any of the Company’s
projects.’’ The letter threatened legal steps lest the Union ad-
here to the prohibition (G.C. Exh. 9). Although the Company
initially professed to be motivated out of a concern for the
safety of visitors, the letter offered a different reason, namely
construction delay.
On May 22, 1990, Hujo, accompanied by another union
representative again went to the jobsite to distribute to the
employees a leaflet calling attention to their Weingarten
rights (G.C. Exh. 11). They also wanted to speak with David
Huddleston, who was appointed steward following the Com-
pany’s discharge of Keith (Tr. 439–443). Although the union
representatives had followed the usual procedure and signed
in at the trailer, Malone ordered them to leave. The Union
refused to leave until Malone called the police, who escorted
the men off the jobsite.
Wehr’s attorney, Smith, again informed the Union by let-
ter of May 27, 1990, of the Company’s new policy regarding
the Union’s access to the jobsites (G.C. Exh. 13).
The record shows in summary that the Company’s conduct
occurred after the Union had been certified as the employees’
bargaining representative and that the Company had abided
by the expired contract’s access provision until the series of
episodes outlined above. A union’s access to the jobsite in
order to represent its members is a term and condition of em-
ployment and subject to bargaining. Respondent’s failure to
bargain about this issue, as well as its shifting reasons for
its new restrictions without a showing of a coherent or ra-
tional basis for the unilateral shift in policy, violated Section
8(a)(1) and (5) of the Act. Fashion Furniture Mfg., 279
NLRB 705 (1986).
V.
The complaint alleges as violations of Section 8(a)(1) of
the Act the conduct of Project Manager Paul Hinson by en-
couraging employees to resign from the Union and by condi-
tioning thereby their continued employment in the event of
a strike and the conduct of Project Manager Garry Brooks
by promising benefits if the employees resigned their union
membership.
In this regard, Hinson testified that on January 3, 1991, he
held a meeting at the Suburban Hospital renovation project
site with several employees, two superintendents, and three
carpenters. During that meeting, he generally indicated the
Company’s concern about the possibility of a strike by the
Union and the Company’s plans in response to a strike. He
also passed out a memorandum which had been prepared by
management and read portions of it to the assembled em-
ployees (Tr. 1144–1146; G.C. Exh. 213). He, inter alia, read
the following paragraph (Tr. 1146):
If a strike or a picket is in place and you desire to con-
tinue to work for Wehr, do not cross the line until you
have submitted a letter of resignation to the Union. This
will prevent any fines from being levied. We will re-
solve and work out your benefits immediately so that
you will not lose important coverages.
When one of the employees asked Hinson whether this
meant that he had to leave the Union in order to remain em-
ployed, Hinson replied, no, ‘‘that it was clearly an individ-
ual’s choice’’ (Tr. 1147–1148).
The other incident occurred at the Waterside project where
the project manager made preparations for the possibility of
a strike pursuant to prior instructions from upper manage-
ment (Tr. 1166–1167). One of the carpenter foremen, Gary
Martin, wanted to know what benefits could the carpenters
expect if they left the Union. In response, Project Manager
Brooks obtained a document from the Company’s offices
which listed the company benefits for nonunion employees
of the Company (G.C. Exh. 207, Tr. 1169). Brooks distrib-
uted copies of the document to the other carpenter employees
at the project.
I find that the statements made, as well as the written ma-
terial distributed fall into the category of factual information
provided to union employees which does not rise to the level
of coercion or interference with their Section 7 rights and
therefore not violative of Section 8(a)(1) of the Act. I ac-
cordingly dismiss these allegations of the complaint.
VI.
The discharge of David Keith, the union steward on May
17, 1990, and the Respondent’s failure to recall him since
December 11, 1990, are alleged as violations of Section
8(a)(1) and (3) of the Act.
David Keith, employed by Wehr since April 1987 was ap-
pointed union steward on April 12, 1990, by Herp, the union
business representative. He worked at the Little Sisters of the
Poor jobsite (Tr. 593–596). Lonnie Malone, the project man-
ager, who had initially hired Keith, reacted adversely to the
union appointment. For example, on the following day, Ma-
lone approached Keith, sprayed red paint on Keith’s union
button saying: ‘‘I want to tell you right now. Steward ain’t
shit out here. I’ll get rid of you quick if you uphold the
union in any way’’ (Tr. 597–598). Malone then described
how he had been responsible for the discharge of another
carpenter, presumably also a steward. When Keith asked him
when is quitting time, Malone replied, ‘‘[W]ell, everybody’s
goin’ quit at three-thirty ‘cept you, and you stay till four
o’clock’ cause you’re the steward’’ (Tr. 598–599).
On May 7, 1990, Keith, acting as a steward, complained
to Malone about the lack of ice water and the unsanitary
conditions in the portable toilets. Malone’s reply to these
complaints were that the employees should go into the
woods or drink the water from a water hydrant if they were
dissatisfied with existing conditions (Tr. 596–601). Keith re-
ported the incident to the union officials, Herp and Hujo,
who then visited the jobsite and spoke with the project super-
intendent. Several days later Keith reported to Dewey Riggs,
one of the project managers at the Little Sister of Mercy job-
879WEHR CONSTRUCTORS
2 I found Keith’s version of the events more credible and plausible
than that of Overstreet.
site, that a laborer was performing carpentry work. On that
occasion, Malone told Keith that ‘‘he didn’t appreciate
[Keith] calling the business agent out here on him’’ (Tr.
603). Riggs commented, ‘‘David, you’re a good worker. I
like you, but you gotta’ let this union stuff ride . . . when
you complain out here about union stuff, it gets back to over
office and they’ll get rid of you’’ (Tr. 606).
On May 17, 1991, Keith was fired under the following cir-
cumstances, Malone assigned Keith and David Huddleston to
demolish a stairwell. After they had begun to work, Malone
assigned Huddleston to another job and also said to him that
Keith was causing trouble about the water, the toilets, and
other matters and that the Berrys had instructed him to fire
Keith (Tr. 711–714). While Keith remained on the wrecking
job of the stairwell, an assignment usually handled by several
men, he had to cut several long pieces of lumber in order
to do the job more efficiently. On the same day, Herp and
Hujo visited the jobsite to resolve the problems reported ear-
lier by Keith. Their efforts failed, because Malone and
Pennick, the project managers, considered the complaints
petty and insinuated that the Union select another steward
because Keith was about to be fired (Tr. 436–438).
According to Berry’s testimony, he ordered the discharge
of Keith on learning that he had cut several long two-by-four
pieces of lumber in half which in Berry’s opinion amounted
to a waste of useable lumber. Berry also considered Keith’s
petty and unjustified complaints about the toilets and the
water as reasons to justify the discharge (Tr. 986). At the end
of the day, Malone handed Keith an envelope with a letter
addressed to the Union and his paycheck with the remarks
that he wished him well in his future and that Hujo would
be arrested if he visited the jobsite again (Tr. 625).
The Respondent had second thoughts about the discharge
of Keith. Berry testified as follows (Tr. 987):
I found that, in talking to some of the men involved
on the job that quite possibly we had made an error.
That maybe Mr. Keith had been discriminated
against by some of our supervisory personnel. And I
got reports from other people that Mr. Keith was a very
good carpenter.
I then recalled an incident where Mr. Keith was
doing work on another job, on a very dangerous posi-
tion and had been extremely cheerful about it in my
presence.
I didn’t realize, at first, that I was dealing with the
same man, but my later information led me to believe
that we had errored [sic] in discharging Mr. Keith.
Berry conceded in his testimony that the Company had
discriminated against Keith and ‘‘ordered that Mr. Keith be
rehired’’ (Tr. 988). After being out of work for about 1
month, Keith was offered reinstatement to his job by Jerry
Sheely. He worked for 5 weeks and, in connection with the
layoff of all carpenters, lost his job again (Tr. 630).
In an effort to be employed, Keith went to Respondent’s
jobsite at the Actor’s Guild project on December 11, 1990.
He introduced himself to Danny Overstreet, the project su-
perintendent with whom Keith had worked in the past. Ac-
cording to Keith, the following conversation ensued (Tr.
631):
I said, ‘‘hi, I’m David Keith.’’ He goes, ‘‘yeah, I
know who you are.’’
I said, ‘‘Danny, I’m looking for a job.’’ He said, ‘‘I
can’t help you. I don’t need anybody.’’ I said, ‘‘well,
I figured this was ready to get started now.’’ Danny
says, ‘‘yeah, I am, but I can’t use you.’’
I said, ‘‘well, I’m in the phone book if you need me.
Give me a call.’’ He said, ‘‘I won’t. I’ve got a lot of
men laid off now.’’ I said, ‘‘okay see you later.’’
Overstreet conceded that he worked with Keith on another
project and that he came to see him for employment in De-
cember at a time when he had not yet finished the ground
work (Tr. 1223–1224). Overstreet, testified that he did not
offer him a job but that he advised him ‘‘to check back
with’’ him in case a subcontractor could use him (Tr. 1225).2
Overstreet denied in his testimony any knowledge of Keith’s
union activity, his difficulties with management, or Keith’s
discharge from the Little Sisters of Poor project. He also de-
nied that he received any instructions from management,
about Keith and his prior role as a union steward (Tr. 1227).
The record shows that already in December and January
and, contrary to his statement to the effect that he did not
need anybody, Overstreet hired carpenters Danny Wall, Ed
Morris, and Henry Tennell. Indeed, Overstreet hired 10 addi-
tional carpenters without contacting Keith. Overstreet con-
ceded that he had placed Keith’s name on a list of available
employees. Overstreet also stated that Wehr’s usual practice
is to hire carpenters on layoff in priority over new applicants
(Tr. 1241). However, he explained the normal practice of as-
sembling a work force as follows (Tr. 1208–1209):
I start off with the personnel that’s worked with me
in the past or is presently working with me when I start
a job, and that’s where I start my work force.
If for some reason I do not have sufficient help, I
always check with the other projects to see if they have
someone that’s in the process of being laid off because
of being caught up, to see if I can place some of those
people.
If I don’t have any other means with the other
projects of collecting personnel, I will take to the fore-
men to see if they have somebody specific they rec-
ommend, and if they don’t, then I will call the Union
hall and get personnel for what I need.
Although Overstreet testified that he hired several carpenters
because they were highly skilled, had worked with him in
the past, or others who were highly recommended to him, he
hired Mike West who had never worked for Wehr in the past
(Tr. 1268). The first carpenter hired by Overstreet was
Danny Walls whose last employment was with another con-
tractor (Tr. 1211). Overstreet hired Henry Tennell even
though he did not know whether he was laid off by Wehr
or another company (Tr. 1215). Overstreet hired Guy Pike
and Russell Jones by contacting another project manager tell-
ing him that he ‘‘was needing some men’’ (Tr. 1217). Yet
he had told Keith in December that he did not need anybody.
Overstreet hired Paul Seng, Richard Pickard, Wilbur Crick,
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As further alleged in the complaint, the Respondent violated a
settlement agreement signed by the parties on June 5 and 8, 1990,
respectively (G.C. Exh. 211). By the terms of the settlement agree-
ment the Respondent promised not to engage in threats ‘‘to lay off
employees and replace them with non-union carpenters’’ or ‘‘to sub-
contract [Wehr’s] work to non-union contractors’’ and ‘‘in any like
or related manner, interfere with, restrain or coerce [the] employees
in their’’ Sec. 7 rights. Considering this conduct as well as other
violations of the Act, already discussed, the Regional Director prop-
erly set aside the settlement agreement.
and Dennis Hightower with whom he had not worked before
but who had come from another Wehr crew (Tr. 1219).
Overstreet’s testimony gives the impression that he would
have hired Keith, or that he would have been able to place
him into a job with a subcontractor, had Keith been more in-
sistent and checked with him periodically (Tr. 1225–1226).
However, I do not credit Overstreet’s testimony in this re-
gard. Instead I believe that Keith’s recollection of the events
are more believable and plausible. Keith, an experienced and
highly respected carpenter was familiar with the practices of
the construction industry. Had he been given the understand-
ing that there was a possibility of employment, he would
have taken the necessary steps. Moreover, Overstreet, who
admitted contacting other project superintendents for referrals
of carpenters could simply have contacted Keith, because he
had placed his name on a list. Finally, Overstreet, when
asked a series of questions on cross-examination, was fre-
quently unable to remember certain events surrounding the
issue (Tr. 1235–1237).
Considering the Respondent’s frequent threats by several
supervisors that Keith’s conduct as a union steward would
cause his discharge or would prevent him from ever working
for Wehr again reveals the Respondent’s union animus. Keith
who admittedly was one of Wehr’s best carpenters became
known as a union activist because, Wehr’s president testified,
‘‘[E]verything that happens on one of our construction job[s]
makes it[s] way through the whole gambit of them . . . they
all knew it and knew it immediately’’ (Tr. 1092). The evi-
dence clearly shows union animus by Wehr’s top manage-
ment, knowledge of Keith’s union activity and discrimina-
tion—virtually conceded by Wehr—and his subsequent fail-
ure to be recalled. In this regard, the record does not show
a dual motive for Respondent’s conduct nor has a dual mo-
tive been established as a defense by the Respondent. See
Wright Line, 251 NLRB 1083 (1980). I accordingly find that
the Respondent violated Section 8(a)(1) and (3) of the Act
as a result of its discharge and subsequent failure to rehire
David Keith.3
VII.
Finally, as alleged in the complaint, by its overall acts and
conduct, including the threat to discharge employees, the dis-
charge of the union steward, the unilateral decisions to sub-
contract unit work and to pay lower wage rates, and Wehr’s
refusal to grant the Union access to jobsites, as well as the
failure to furnish the Union the requested information on
subcontracting, the Respondent has failed and refused to bar-
gain in good faith with the Union.
I make this finding even though I was impressed by the
testimony of Wehr’s chairman and chief executive, Claude
Berry Jr. He articulated the difficulties of Wehr’s position in
a highly competitive market and of Wehr as a unionized con-
struction firm in direct competition with nonunionized firms,
but he also seemed to express a desire to come to terms with
the Union on a collective-bargaining agreement, including a
provision dealing with the subcontracting issue. He also indi-
cated the Company’s error in discharging Keith, the steward.
However, the dealings between Wehr and the Union by their
respective representatives has put the Union in a position
where it lacks the information necessary to effectively rep-
resent its members, where the union steward’s complaints
about working conditions are ridiculed, where his discharge
has the chilling effect in a company where such news travels
quickly, and where union representatives who are attempting
to deal with management about the working conditions are
denied access, evicted by the police, and threatened with fu-
ture evictions. Furthermore, the Respondent’s responses to
the Union’s request were designed to disclose information
which was favorable to its position, as for example the infor-
mation that the owner of a project controlled the subcontract-
ing rather than Wehr. Other responses to the Union’s de-
mands for information confused rather than simplified the
issues or the Union’s understanding of Wehr’s practices, as
for example the written replies and certain selected docu-
ments showing Wehr’s role as a general contractor on a
project or as a construction manager. Moreover I did not find
credible certain testimony to the effect that Wehr’s practice
begin a portion of projects as a contractor without a signed
contract. The Company could have been more careful in
avoiding misunderstandings, as for example, the confusion
about the Heisler letter and the existence of certain contracts
showing subcontracting of bargaining unit work. Finally, Re-
spondent’s repeated claims during the negotiations that an
impasse existed or its preparation for a strike, as well as its
repeated rejections of any union proposal to resolve the sub-
contracting issue, as for example, the ‘‘think-tank’’ idea was
not contructive during the negotiations.
Considering ‘‘the employer’s conduct in the totality of the
circumstances in which the bargaining took place’’ not only
at the bargaining table but also at ‘‘conduct away from the
table that may affect the negotiations,’’ I find that the Re-
spondent by its overall acts and conduct has failed and re-
fused to bargain in good faith in violation of Section 8(a)(1)
and (5) of the Act. NLRB v. Billion Oldsmobile-Toyota, 700
F.2d 454 (8th Cir. 1983).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union is the collective-bargaining representative of
Respondent’s employees in the following unit:
All journeymen and apprentice carpenters employed by
the [Respondent] at jobsites within the State of Ken-
tucky, including foremen, excluding all other building
trades craftsmen, office clerical employees and all pro-
fessional employees, guards and supervisors as defined
in the Act.
4. By failing and refusing to furnish the Union with infor-
mation requested on February 21, 1991, i.e., certain docu-
ments concerning 25 projects performed between May 1986
881WEHR CONSTRUCTORS
and May 30, 1989, which is necessary for, and relevant to,
the Union’s performance of its function as the bargaining
representative of its employees, the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
5. By subcontracting bargaining unit work on various
projects subsequent to the Union’s certification as the em-
ployees’ collective-bargaining agent, the Respondent violated
Section 8(a)(1) and (5) of the Act.
6. By threatening to lay off employees because of the
Union’s conduct, the Respondent violated Section 8(a)(1) of
the Act.
7. By imposing restrictions on the Union’s access to unit
employees at Respondent’s jobsites, denying union represent-
atives access to jobsites, and forcibly removing them from
jobsites, the Respondent violated Section 8(a)(1) and (5) of
the Act.
8. By paying labor or ‘‘light commercial’’ wage rates on
certain projects without bargaining with the Union, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
9. By discharging its employee David Keith, a union stew-
ard, and failing to recall him from layoff, because of his
union activities, the Respondent violated Section 8(a)(1) and
(3) of the Act.
10. By its overall conduct, including its violations of the
Act, the Respondent has failed and refused to bargain in
good faith in violation of Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3), (5), and (1) of the Act, I shall recommend that
it cease and desist therefrom and, on request, bargain collec-
tively and in good faith with the Union as the exclusive rep-
resentative of all employees in the appropriate unit and, if an
agreement is reached, reduce the terms to writing and to sign
a collective-bargaining agreement. Having found that the Re-
spondent refused to furnish the Union with relevant informa-
tion, the Respondent will be ordered to furnish the requested
information. Having found that the Respondent subcontracted
bargaining unit work, the Respondent will be ordered to
cease the practice and bargain collectively and in good faith
with the Union about the issue. Because the record does not
reveal which unit employees were adversely affected by this
practice, a make-whole remedy is not indicated. Having
found that the Respondent unilaterally paid reduced rates of
pay to bargaining unit employees without bargaining with the
Union, the Respondent will be ordered to restore the pay
rates for its unit employees and to bargain collectively and
in good faith about the issue and to make the employees
whole in accordance with applicable precedents. And, having
unlawfully discharged and refused to recall David Keith, the
Respondent shall offer him reinstatement and make him
whole for lost earnings and other benefits computed on a
quarterly basis from the date of discharge to the date of a
proper offer of reinstatement, less net interim earnings in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The Respondent will also be ordered to grant the Union
access to its unit employees at Wehr’s jobsites in accordance
with past practice.
[Recommended Order omitted from publication.]