W.R. Mollohan, Inc.

National Labor Relations Board - Board Decisions

May 7, 2001

333 N.L.R.B. 1339 (N.L.R.B. 2001)

W. R. MOLLOHAN, INC. 1339
W. R. Mollohan, Inc. and International Brotherhood
of Painters and Allied Trades, Local Union No.
970, AFL–CIO–CLC and International Broth-
erhood of Painters and Allied Trades, Local Un-
ion No. 1144, AFL–CIO–CLC. Cases 9–CA–
36048–1, 9–CA–36358–1, and 9–CA–36358–2
May 7, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN,
AND WALSH
On July 28, 1999, Administrative Law Judge William
N. Cates issued the attached bench decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, and to adopt the recommended Order as modi-
fied.
1. The complaint alleges that the Charleston Chapter
of the Painting and Decorating Contractors of America
Association (PDCA or the Association) was authorized
by the Respondent to bargain collectively on the Re-
spondent’s behalf with the Union. It further alleges that
the Association and the Union reached an agreement
effective June 1, 1998, through May 31, 2001. The com-
plaint also alleges that the Respondent refused to execute
or abide by this agreement, in violation of Section 8(a)(5)
and (1) of the Act. The Respondent contends that it
never authorized the Association to bind it to a collec-
tive-bargaining agreement.
The Respondent’s vice president of operations, Joe
Beam,2 was also president of the Association. In the
latter capacity he wrote a letter to the Union dated March
12, 1998,3 stating, inter alia, that the Association desired
to open negotiations for the next contract period. The
first negotiating session was on April 7. Union official,
George Galis, asked the Association’s negotiators, in-
cluding Beam, on whose behalf they were negotiating.
Beam and the Association’s secretary-treasurer, Ken
Bowen, responded that they represented specific individ-
ual employers, including the Respondent. On April 17,
Beam wrote to the Association stating that he had re-
signed from the PDCA-negotiating committee.4 The
next negotiating session was held on April 28. On that
day, the parties reached an agreement contingent upon
ratification by the union membership. Beam did not at-
tend the second meeting. On May 8, Beam wrote a letter
to the Association stating that the Respondent withdrew
authorization from the Association to bind it in collective
bargaining.5

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Drywall 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.
2 Beam testified that he owned 45 percent of the Respondent’s stock,
and the remainder is owned by his wife.
3 All subsequent dates are 1998 unless stated otherwise.
The record does not firmly establish that the employers
in the Association were in a multiemployer unit. Beam
and Bowen, however, told the Union on April 7 that the
Association represented specific individual employers
including the Respondent. Thus, the Association had
apparent authority to act as the agent for each of the
named employers. The fact that Beam resigned from the
Association’s negotiating committee on April 17 did not
take away the principal-agent relationship between the
Respondent and the Association. Thus, when the Asso-
ciation and the Union reached an agreement on April 28,
that agreement was binding on the Respondent.6 Accord-
ingly, the Respondent’s subsequent attempt to withdraw
bargaining authority from the Association on May 8, was
untimely.7
2. The Respondent excepts to the judge’s finding that
it was not excused from executing the agreement because
it contained allegedly unlawful provisions. Specifically,
the Respondent argues that the leasing provisions of the
“successorship clause”8 and the “preservation of work
4 The letter indicates that a copy was sent to the Union. Beam also
wrote the joint apprentice training committee a letter (with a copy to the
Union) on the same date stating that he was resigning from that com-
mittee.
5 A copy of this letter was sent to union official, George Galis.
6 See, University of Bridgeport, 229 NLRB 1074 (1977). See also
Metco Products v. NLRB, 884 F.2d 156 (4th Cir. 1989), enfg. 289
NLRB 76 (1988).
7 There is no record evidence of when the contract was ratified. In
any event, there is no contention that any condition of ratification
should excuse the Respondent from executing the contract.
8 Art. XXXII “Successor Clause” of the collective-bargaining
agreement states in pertinent part:
This agreement, and any supplements or amendments thereto, herein-
after referred to collectively as “agreement”, shall be binding upon the
parties hereto, their successors, administrators, executors and assigns.

In the event the Employer’s business is, in whole or in part, sold,
leased, transferred, or taken over by sale, transfer, lease, assignment,
receivership, or bankruptcy proceedings, such business and operation
shall continue to be subject to the terms and conditions of this Agree-
ment for the life thereof.

It is understood by this provision that the parties hereto shall not use
any leasing or other transfer device to a third party to evade this
agreement.
333 NLRB No. 162
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1340
clause”9 both violate Section 8(e) of the Act. The judge
found both provisions to be lawful, but held that, even if
the disputed provisions of the contract violate the Act,
the Respondent is not privileged to refuse to execute the
contract, as it is saved by the general savings clause.10
We agree with the judge’s conclusions about the general
savings and work preservation clauses.11 However, we
disagree with his analysis of the successorship clause.
In pertinent part, the successorship clause provides:

In the event the Employer’s business is, in whole or in
part, sold, leased, transferred, or taken over by sale,
transfer, lease, assignment, receivership, or bankruptcy
proceedings, such business and operation shall continue
to be subject to the terms and conditions of this Agree-
ment for the life thereof.

It is understood by this provision that the parties hereto
shall not use any leasing or other transfer device to a
third party to evade this agreement.

The judge read the first paragraph above—requiring a new
entity to be bound by the agreement—to be qualified by the
language in the second paragraph. In other words, he found

9 Art. XVI “Preservation of Work Clause” states in pertinent part:
To protect and preserve, for the employees covered by this Agree-
ment, all work they have performed and all work covered by this
Agreement, and to prevent any device or subterfuge to avoid the pro-
tection and preservation of such work, it is agreed as follows: if the
Employer performs on-site construction work of the type covered by
this Agreement, under its own name or the name of another, as a cor-
poration, company partnership, or business entity, including a joint
venture, wherein the Employer, through its officers, directors, part-
ners, owners, or stockholders, exercises directly or indirectly (through
family members or otherwise), management, control, or majority
ownership, the terms and conditions of his [sic] agreement shall be
applicable to all such work.
10 Art. XXXIII, the “General Savings Clause” states in pertinent part:
If any Article or Section of this Agreement should be held invalid by
operation of law or by any tribunal of competent jurisdiction, or if
compliance with or enforcement of any Article or Section should be
restrained by such tribunal pending a final determination as to its va-
lidity, the remainder of this Agreement or the application of such Arti-
cle or Section to persons or circumstances other than those as to which
it has been held invalid or as to which compliance with or enforce-
ment of has been restrained, shall not be affected thereby.
11 The “Work Preservation Clause” is virtually identical to a clause
found not to violate Sec. 8(e) in Carpenters (Mfg. Woodworkers Assn.),
326 NLRB 321, 326 (1998) (“Other Operations,” Sec. 1. “Work Pres-
ervation Clause”). For the reasons fully set forth in that case, we adopt
the judge’s conclusion that the “Work Preservation Clause” at issue
here, does not violate Sec. 8(e).
Member Hurtgen agrees with the majority that the “Preservation of
Work Clause” here is virtually identical to the one at issue in Mfg.
Woodworkers Assn., supra. For the reasons discussed in his dissent in
that case, he concludes that the clause here violates Sec. 8(e). How-
ever, as the agreement here contains a “General Saving Clause,” he
would require the Respondent to execute and abide by the remainder of
the contract.
“the matters that are forbidden by the successorship clause
would pertain only to an attempt by the Company to evade
the agreement.” As such, he found that the provisions were
lawful. We disagree with his reading. There is no language
suggesting that the second paragraph above is a limitation
on the first; rather it is a separate and distinct term of the
agreement.
Turning to the legality of the provision, Section 8(e) is
violated when an employer and a union enter into an
agreement requiring the employer to cease doing busi-
ness with any other person. The Board has generally con-
sidered a lease to be a form of “doing business” within
the meaning of Section 8(e). Hotel & Restaurant Em-
ployees Local 274 (Sheraton University Hotel), 326
NLRB 1058 (1998).12 As the Board in Sheraton dis-
cussed, however, Section 8(e) does not prohibit agree-
ments whose primary objective is the preservation of
bargaining unit work, as distinct from a secondary objec-
tive of advancing the union’s interests elsewhere, id.,
citing National Woodwork Manufacturers Assn. v.
NLRB, 386 U.S. 612, 634 (1967).
The leasing provision at issue here effectively requires
that the lessee become bound to the contract regardless of
whether the unit employees are retained. As such, it ex-
ceeds the legitimate primary purpose of protecting unit
work and is directed at the secondary purpose of further-
ing union objectives elsewhere. Since the employer
would be prohibited from doing business with a potential
lessee who refused to be bound by the agreement, this
leasing provision of the successor clause violates Section
8(e). See Chicago Dining Room Employees Local 42,
248 NLRB 604, 607 (1980), cited in Sheraton, supra.
Significantly, however, as in Sheraton, this does not ren-
der the entire successor clause void. Indeed, the parties
have agreed, in the general savings clause, that the in-
validation of a particular section of the agreement does
not affect the remainder of the agreement.
3. We shall order the Respondent to execute and abide
by the 8(f) agreement, consistent with the principles
enunciated in John Deklewa & Sons, 282 NLRB 1375
(1987), enfd. sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988). In its exceptions, the Re-
spondent argues that since this case arises in the United
States Court of Appeals for the Fourth Circuit, the Board
must address contrary precedent of that court. Specifi-
cally, the Respondent cites Industrial TurnAround Corp.
v. NLRB, 115 F.3d 248 (1997).
In Industrial TurnAround the Fourth Circuit declined
to enforce a Board order requiring the employer and its
12 Member Hurtgen notes here, as in Sheraton, supra, that the issue
of whether the sale or transfer of a business constitutes “doing busi-
ness” within the meaning of Sec. 8(e) is not presented in this case.
W. R. MOLLOHAN, INC. 1341
nonunion alter ego company to abide by the terms of an
8(f) agreement that had been negotiated on their behalf
by a multiemployer bargaining association. The Board
found that the employer had not timely withdrawn its
bargaining authority from the multiemployer association
prior to the creation of its alter ego and subsequent
unlawful repudiation of its still-current 8(f) collective-
bargaining agreement. In denying enforcement of the
Board’s remedial order, the court held, under existing
Fourth Circuit precedent,13 that 8(f) prehire agreements
may be repudiated at any time by either party prior to the
union’s achievement of majority status, id. at 254, and
that the alter ego employers in Industrial TurnAround
therefore had the right to repudiate the 8(f) agreement.
We find the instant case, however, to be distinguish-
able from Industrial TurnAround. Unlike there, the Re-
spondent does not seek to repudiate the 8(f) relationship.
Rather, it is refusing to execute the negotiated agreement
because it wants to negotiate a different contract within
that 8(f) relationship. Inasmuch as the contract here has
been reached within a relationship which the Respondent
does not seek to abrogate, we do not believe that our de-
cision and order here is in conflict with the Fourth Cir-
cuit precedent.14
AMENDED REMEDY
We shall modify the judge’s remedy by providing that
the Respondent be required to agree to, execute, and
abide by the collective-bargaining agreement which is
effective for the period June 1, 1998, through May 31,
2001, after those portions of article XXXII of the agree-
ment pertaining to leasing, which effectively provide that
the agreement shall be applicable to and binding on any
lessee, have been deleted.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, W.R. Mollo-
han, Inc., Charleston, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(a).

13 Clark v. Ryan, 818 F.2d 1102, 1107 (4th Cir. 1987).
14 In any event, to the extent that our opinion in this case is in con-
flict with Fourth Circuit precedent, we note that our duty to apply uni-
form policies under the Act, and the Act’s venue provisions for review
of our decisions, make it, as a practical matter, impossible for us to
acquiesce in every contrary decision by the Federal courts of appeals.
TCI West, Inc., 322 NLRB 928 (1997) (citing Arvin Industries, 285
NLRB 753, 757–758 (1987)), enf. denied sub nom. TCI West, Inc. v.
NLRB, 145 F.3d 1113 (9th Cir. 1998), and Insurance Agents (Pruden-
tial Insurance Co.), 119 NLRB 768, 773 (1957).
“(a) Agree to execute and abide by the collective-
bargaining agreement described in paragraph 1(a) of this
Order after those portions of article XXXII of the agree-
ment pertaining to leasing, which effectively provide that
the agreement shall be applicable to and binding on any
lessee, have been deleted.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT withdraw recognition from or fail and
refuse to recognize and bargain with International Broth-
erhood of Painters and Allied Trades, Local Union No.
970, AFL–CIO–CLC as the exclusive collective-bargain-
ing representative of our employees in the following unit:

All employees of ours engaged in brush painting, air
comp/operator roller painting & helpers, drywall point-
ers & tapers, dipping & mitten work, sprayer machine
operator, taping machines mud mixer, pole sander & all
helpers, tape & shackling teams, all synthetic interior &
exterior work, sandblasters & helpers, water blasters &
helper, steam jenny nozzles & helper, swinging scaf-
fold & boatswain chair, window belt & window jack
work, vinyl hangers & helpers, paper hangers & help-
ers within the geographic jurisdiction of the Union, but
excluding all professional employees, guards and su-
pervisors as defined in the Act.

WE WILL NOT fail and refuse to make the required
benefit payments to the Pension Fund, Annuity Fund,
Apprenticeship and Manpower Training, and the Health
and Welfare Fund on behalf of the unit employees.
WE WILL NOT fail and refuse to make the required
benefit payments to the Pension Fund, Apprenticeship
Fund, Building and Trade Fund, and Substance Abuse/
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1342
Training Fund when unit employees are employed within
the geographic jurisdiction of International Brotherhood
of Painters and Allied Trades, Local Union 1144 pursu-
ant to Local 1144’s agreement with The Parkersburg-
Marietta Contractors Association.
WE WILL NOT fail and refuse to calculate and pay
overtime pay for unit employees employed within the
geographic jurisdiction of the International Brotherhood
of Painters and Allied Trades, Local Union 1144 pursu-
ant to Local 1144’s agreement with The Parkersburg-
Marietta Contractors Association.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL execute and abide by the 8(f) collective-
bargaining agreement negotiated on our behalf by the
Charleston Chapter of the Painting and Decorating Con-
tractors of America with the International Brotherhood of
Painters and Allied Trades, Local Union No. 970, AFL–
CIO–CLC which is effective for the period June 1, 1998,
through May 31, 2001, after those portions of article
XXXII of the agreement, pertaining to leasing, which
effectively provide that the agreement shall be applicable
to and binding on any lessee, have been deleted.
WE WILL give retroactive effect to the terms and
conditions contained in the agreement, including but not
limited to, making all required benefit payments to the
various benefit funds contained therein and/or required
when unit employees are employed in the geographic
jurisdiction of Local 1144.
WE WILL make our unit employees whole for any
loss of benefits, or expenses ensuing from our failure to
make the required benefit payments.
WE WILL calculate and pay our unit employees over-
time pay when they are employed in the geographic ju-
risdiction of Local 1144.

W.R. MOLLOHAN, INC.

Andrew L. Lang, Esq., for the General Counsel.
Forrest H. Roles, Esq., for the Company.
John F. Dascoti, Esq., for the Union.
BENCH DECISION
WILLIAM N. CATES, Administrative Law Judge. At the
close of a 2-day trial in Charleston, West Virginia, on June 30,
1999, I rendered a Bench Decision in these consolidated cases.
For the reasons stated by me on the record at the close of the
trial I found in favor of the General Counsel (the Government)
on all issues. Specifically, I concluded, as alleged in the con-
solidated complaint (the complaint), that W.R. Mollohan, Inc.
(the Company) violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act). I concluded the Company,
which admittedly is an industrial exterior painting contractor,
has been, and continues to be, engaged in the building and con-
struction industry. I concluded the Company was, at all times
material herein, a member of the Charleston Chapter of the
Painting and Decorating Contractors of America (the Associa-
tion). I likewise concluded the Association is an organization
composed of employers engaged in the construction industry
and exists for the purpose, inter alia, of representing its em-
ployer members, including the Company herein, in negotiating
and administering collective-bargaining agreements. See, e.g.,
Bill O’Grady Carpet Service, 185 NLRB 587, 590 (1970). I
concluded the Company unequivocally authorized the Associa-
tion to bargain collectively with International Brotherhood of
Painters and Allied Trades, Local Union No. 970, AFL–CIO–
CLC (the Union) concerning wages, hours, and other terms and
conditions of employment of its employees in an appropriate
unit which unit is as follows:

All employees of the Company engaged in brush painting, air
comp/operator roller painting & helpers, drywall pointers &
tapers, dipping & mitten work, sprayer machine operator, tap-
ing machines mud mixer, pole sander & all helpers, tape &
shackling teams, all synthetic interior & exterior work, sand-
blasters & helpers, water blasters & helper, steam jenny noz-
zles & helper, swinging scaffold & boatswain chair, window
belt & window jack work, vinyl hangers & helpers, paper-
hangers & helpers within the geographic jurisdiction of the
Union, but excluding all professional employees, guards and
supervisors as defined in the Act.

I concluded the Association and the Union on April 28,
1998, reached complete agreement on a collective-bargaining
agreement covering the above-unit employees and on May 18,
1998, executed the agreement. The agreement is effective by its
terms from June 1, 1998, through May 31, 2001. I concluded
the Union, on May 19, 1998, requested, in writing, the Com-
pany execute and abide by the agreement negotiated on its be-
half by the Association. I concluded the Company, in violation
of Section 8(a)(5) and (1) of the Act, refused to agree to, abide
by or execute the agreement. In disagreement with the Com-
pany, I concluded, as indicated above, it had historically dele-
gated bargaining authority to the Association and had specifi-
cally done so for the most recent negotiations and had not
timely withdrawn from multiemployer bargaining (or from the
Association) and as such is bound by the agreement negotiated
by the Association on its behalf.
I specifically found, as alleged in the complaint, the Com-
pany violated the Act by: since June 1, 1998, unilaterally de-
ducting pension contributions from its bargaining unit employ-
ees and failing and refusing to make payments to the Union
Pension Fund, Annuity Fund, Apprenticeship and Manpower
Training Fund, and Health and Welfare Fund as required by the
collective-bargaining agreement; and, since June 1, 1998, has
failed to calculate overtime pay for its bargaining unit employ-
ees working within the jurisdiction of International Brother-
hood of Painters and Allied Trades, Local Union 1144 (Local
Union 1144) pursuant to Local Union 1144’s agreement with
The Parkersburg-Marietta Contractors Association, Inc. (PMC
Assoc.) as called for in the agreement between the Company
and the Union herein and has failed and refused to make the
required contributions to the Local Union 1144/PMC Assoc.
W. R. MOLLOHAN, INC. 1343
Industry Pension Fund, Apprenticeship Fund, Building and
Trades Fund, and Substance Abuse/Training Fund.
I rendered the Bench Decision pursuant to Section
102.35(a)(10) of the National Labor Relations Board’s (the
Board) Rules and Regulations.
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 204 to 224, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act; that it violated the Act in certain particulars
and for the reasons stated at trial and summarized above, and its
violations have affected, and unless permanently enjoined, will
continue to affect commerce within the meaning of Section 2(2)
and (6) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Specifically, having found the Company has violated Section
8(a)(5) and (1) of the Act, I shall recommend it be ordered to
recognize the Union as the exclusive collective-bargaining
representative of its employees in the specifically described
unit. I also recommend the Company be ordered to agree to,
execute and abide by the Association’s and the Union’s negoti-
ated 8(f) agreement which is effective by its terms for the pe-
riod June 1, 1998, through May 31, 2001. I recommend the
Company be ordered to make its unit employees whole by mak-
ing the required benefit contributions to the Pension Fund, An-
nuity Fund, Apprenticeship and Manpower Training Fund, and
the Health and Welfare Fund. Likewise, I recommend the
Company be ordered to further make its employees whole by
making contributions to the Industry Pension Fund, Building
and Trades Fund, Apprenticeship Fund, and Substance
Abuse/Training Fund, applicable to unit employees when em-
ployed within the geographical jurisdiction of Local Union
1144 pursuant to Local Union 1144/PMC Assoc.’s agreement,
including any additional amounts applicable to such delinquent
contributions, as well as to all applicable funds, in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). In addition, the Company shall reimburse unit employ-
ees for any expenses ensuing from its failure to make the re-
quired contributions, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981), such amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Further, I shall

1 I have corrected the transcript pages containing my Decision. The
corrections are as reflected in the attached Apppendix C. [Omitted
from publication.] The corrections have been made to conform to my
intended words, without regard to what I may have actually said in the
passages in question.
recommend the Company be ordered to calculate overtime pay
for unit employees employed in the geographical jurisdiction of
Local Union 1144 pursuant to its agreement with PMC Assoc.
that it has unlawfully failed and refused to calculate, and pay in
the manner set forth in Ogle Protective Service, supra, with
interest as prescribed in New Horizons for the Retarded, supra.
Finally, I recommend the Company be ordered, within 14 days
after service by the Region, to post an appropriate notice to
employees, copies of which are attached as “Appendix B”2 for
a period of 60 consecutive days in order that employees may be
apprised of their rights under the Act and the Company’s obli-
gation to remedy its unfair labor practices.
On these conclusions of law, and on the entire record, I issue
the following recommended3
ORDER
The Company, W. R. Mollohan, Inc., Charleston, West Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union as the ex-
clusive collective-bargaining representative of all employees in
the unit described below by unlawfully withdrawing recogni-
tion from the Union and refusing to agree to, execute and abide
by the terms of the 8(f) collective-bargaining agreement negoti-
ated by the Association and the Union on its behalf which
agreement is effective by its terms for the period June 1, 1998,
through May 31, 2001. The appropriate unit is:

All employees of the Company engaged in brush painting, air
comp/operator roller painting & helpers, drywall pointers &
tapers, dipping & mitten work, sprayer machine operator, tap-
ing machines mud mixer, pole sander & all helpers, tape &
shackling teams, all synthetic interior & exterior work, sand-
blasters & helpers, water blasters & helper, steam jenny noz-
zles & helper, swinging scaffold & boatswain chair, window
belt & window jack work, vinyl hangers & helpers, paper
hangers & helpers within the geographic jurisdiction of the
Union, but excluding all professional employees, guards and
supervisors as defined in the Act.

(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Forthwith agree to, execute and abide by the 8(f) collec-
tive-bargaining agreement described in paragraph 1(a) of this
Order.
2 If this Order is enforced by a judgment of the United States court
of ppeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1344
(b) Give retroactive effect to the terms and conditions of the
8(f) collective-bargaining agreement described in paragraph
1(a) of this Order, including, but not limited to, the provisions
relating to wages and other terms and benefits as set forth in the
remedy section of this decision.
(c) Make the required benefit payments to the Pension Fund,
Annuity Fund Apprenticeship and Manpower Training Fund,
and the Health and Welfare Fund on behalf of the unit employ-
ees, as set forth in the remedy portion of this decision.
(d) Make the benefit payments to the Pension Fund, Appren-
ticeship Fund, Building and Trades Fund, and Substance
Abuse/Training Fund as required by the agreement, described
in paragraph 1(a) of this Order, when unit employees are em-
ployed within the geographical jurisdiction Local Union 1144
pursuant to its agreement with PMC Assoc.
(e) Make whole unit employees for any loss of benefits or
expenses ensuing from its failure to make the required benefits
payments to the funds, as set forth in the remedy section of this
decision.
(f) Calculate and pay unit employees overtime pay for work
performed within the geographical jurisdiction of Local Union
1144 pursuant to its agreement with PMC Assoc.
(h) Within 14 days after service by the Region, post at its
Charleston, West Virginia facility copies of the attached notice
marked “Appendix B.” Copies of the notice, on forms provided
by the Regional Director for Region 9 after being signed by the
Company’s authorized representative shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that during the pendency of these pro-
ceedings the Company has gone out of business or closed the
facility involved in these proceedings, the Company shall du-
plicate and mail, at its own expense, a copy of the notice to all
unit employees employed by the Company on or at any time
since May 22, 1998.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Company has taken to comply.
APPENDIX A
DECISION
204
JUDGE CATES: This is my decision in the matter of W. R.
Mollohan, Inc. and the International Brotherhood of Painters
and Allied Trades, Local Union Number 970, AFL–CIO–CLC
and International Brotherhood of Painters and Allied Trades,
Local Union 1144, AFL–CIO–CLC, Cases 9–CA–36048–1, 9–
CA–36358–1, and 9–CA–36358–2.
First let me state that it has been a pleasure to be in Charles-
ton, West Virginia. It has been my experience that counsel in
this area are some of the very finest. The counsel in this case
have done an outstanding job representing the interests they
represent. The three of you are a credit to the parties you repre-
sent. I thank you for your presentation of the evidence, and
your arguments in this case. If you will reflect back over the
trial, I have asked few, if any, questions at all. And that is a
real credit to counsel when they put the evidence in without the
interruption or interference of the Judge. That is a credit to the
three of you.
I find the charge in Case 9–CA–36048–1 was filed by Inter-
national Brotherhood of Painters and Allied Trades, Local Un-
ion Number 970, AFL–CIO–CLC, hereinafter, the Union, on
June 17, 1998, and thereafter timely served on the parties. The
charge in 9–CA–36358–1 was filed by the Union on October
30, 1998, and thereafter timely served on the parties. The
charge in 9–CA–36358–2 was filed by the International Broth-
erhood of
205
Painters and Allied Trades, Local Union 1144, AFL–CIO–
CLC, on November 13, 1998, and thereafter timely served on
the parties.
The Regional Director for Region 9 of the National Labor
Relations Board on behalf of the General Counsel of the Na-
tional Labor Relations Board—(Board)—issued a consolidated
complaint and notice of hearing on November 30, 1998 in
which it is alleged W. R. Mollohan, Inc., hereinafter the Com-
pany, violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as Amended, (Act) by certain specific allega-
tions outlined in the Complaint at Paragraphs 9, 10, 11, and 13.
More specifically, it is alleged the Company has refused to
agree to, execute, or abide by the collective bargaining agree-
ment that was arrived at on April 28, 1998.
Further, it is alleged the Company, since on or about June 1,
1998 unilaterally deducted pension contributions from pay-
checks issued to unit employees. It is further alleged the Com-
pany on or about June 1, 1998 unilaterally failed and refused to
make payments to certain pension funds, annuity fund, to an
apprentice program, and to a health and welfare fund as re-
quired by the collective bargaining agreement that the Govern-
ment contends the Company is was and continues to be bound
by.
Further, it is alleged the Company has failed and refused to
calculate overtime for certain employees that have been work-
ing outside the jurisdiction of the collective bargaining agree-
ment herein. The Government contends the Company is bound
by, and is
206
required to pay the employees by the provisions of an agree-
ment arrived at with a separate association. The Government
contends the failure on behalf of the Company to do as it has
indicated—the Company failed to do—constitutes violations of
the National Labor Relations Act, as Amended; hereinafter
referred to as the Act.
The evidence establishes, and I find, the Company is a cor-
poration with its principal place of business in Charleston, West
Virginia. Vice President of Operations for the Company, Joe
Beam, testified it is a heavy industrial corporation. Primarily
the Company paints federal highway bridges, overpasses, and
highway tunnels. The Company does the same type work,
according to Beam, for state governments on state highways.
W. R. MOLLOHAN, INC. 1345
Vice President of Operations Beam testified the bulk of the
Company’s business is sandblasting and painting, and/or re-
painting bridges, tunnels and overpasses. The Company per-
forms very little commercial painting of buildings or light in-
dustrial painting, and seldom if ever, engages in residential
painting. During the twelve (12) month period preceding issu-
ance of the Complaint herein the Company, in conducting its
operations, purchased and received goods in the State of West
Virginia valued in excess of fifty thousand dollars ($50,000.00)
directly from suppliers located outside the State of West Vir-
ginia.
207
The evidence establishes, the parties admit, and I find the
Company is engaged in commerce within the meaning of Sec-
tion 2(2)(6) and (7) of the Act.
The Company appears, by it’s answer to the Complaint, to
deny that it is engaged in the building and construction indus-
try. The Board has long held that employers engaged in the
type business as this Company is engaged in, painting contrac-
tor work, is engaged in the building and construction industry,
and I so find.
The evidence establishes, the parties admit, and I find the In-
ternational Brotherhood of Painters and Allied Trades, AFL–
CIO–CLC, and its Locals 970 and 1144 are, and at times mate-
rial herein have been, labor organizations within the meaning of
Section 2(5) of the Act.
Company Vice President of Operations Beam testified he is
forty-five (45) percent owner of the Company herein, with his
wife owning the remaining interest in the Company. Beam
asserts he makes the decisions for the Company. Accordingly,
the evidence establishes, the parties admit, and I find that Com-
pany Vice President of Operations Beam is a supervisor and
agent of the Company within the meaning of Section 2(11) and
2(13) of the Act.
It is alleged in the Complaint the following classifications of
employees of the Company constitute a unit appropriate for the
208
purposes of collective bargaining within the meaning of Section
9(b) of the Act. The unit, as amended at trial, is:

all employees of the Company including brush painting, air
compressor operator, roller painting and helpers, drywall
painters and tapers, dipping and mitten work, sprayer machine
operator, tapping machines, mud mixer, pole sander and all
helpers, tape and shacklin teams, all synthetic interior and ex-
terior work, sandblasters and helpers, water blasters and
helper, steam genie nozzles and helper, swinging scaffold and
boatswain chairman, window belt and window jack work, vi-
nyl hangers and helpers, and paperhangers and helpers. But
excluding all professional employees, guards, and supervisors
as defined in the Act.

The unit description is applicable to the geographic jurisdic-
tion of the Union.
The Company denies such is an appropriate unit. But the
Company admits that prior to 1995 it granted recognition to the
Union as the exclusive bargaining representative of the unit,
and since such date the Union has been recognized as such by
the Company without regard to whether the majority status of
209
the Union had been established under the provisions of 9(a)of
the Act.
The Company asserts it withdrew recognition from the Un-
ion in 1998.
First, with respect to the appropriateness of the unit, I note
the parties have, over the years, negotiated the makeup of the
recognized unit set forth, including exclusions and inclusions
from the unit. The Company recognized such as an appropriate
unit, for example, in the June 1, 1995 to June 1, 1998 collective
bargaining agreement received in evidence as General Counsel
Exhibit 20. Article I, Section 1, Page 1 of that agreement taken
in conjunction with the classifications set forth on the last page,
30, of that same agreement is the classifications alleged by the
General Counsel in the Complaint herein.
Company Vice President of Operations Beam’s signature
appears on the very page the classifications are set forth on.
The Company recognized these classifications as an appropriate
unit and abided by the provisions of the 1995 to 1998 collective
bargaining agreement. I find the unit, as alleged, to be an ap-
propriate unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
I specifically reject the Company’s contention, the unit, as I
have found appropriate, is, in fact, inappropriate. The fact the
Company may employee some employees that function, at least
some of their working time, as truck drivers, boat operators,
and
210
traffic control employees does not compel the conclusion that
this is an inappropriate unit. Nor does Company Vice President
of Operations Beam’s assertion he primarily employs only two
classifications of employees, namely sandblasters and painters,
warrant a conclusion that the unit, as I have found appropriate,
is inappropriate.
It is alleged in the Complaint that the Charleston Chapter of
the Painting and Decorating Contractors of America Associa-
tion is an organization composed of employers in the construc-
tion industry and exists for the purpose inter alia of represent-
ing its employer members in negotiating and administering
collective bargaining agreements. The Company denies this
allegation.
In agreement with the General Counsel I find the Association
does, in fact, exist in part for the purpose of representing its
employer members in negotiating and administering collective
bargaining agreements.
Twenty (20) year Association Secretary-Treasurer Ken Bo-
wen testified the function of the Association was to negotiate
collective bargaining agreements with the Union and to help
administer a joint apprentice training program and a health and
welfare fund. Bowen testified the Association placed three of
the six members on the joint apprentice training program, as
well as of the three members of the Health and Welfare Fund.
Both programs are administered jointly by the Association and
the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1346
211
Bowen identified the mainstays among the Association as
the company herein, and at least the company that he was asso-
ciated with, which was the W. Q. Waters Company. Company
Vice President of Operations Beam testified the company had
been a member of the Association since approximately 1991,
and that he, Beam, served as vice president of the Association
in the early 1990’s, and thereafter became president of the As-
sociation, as well as a negotiating committee member, and later
a chief spokesperson for the Association.
I find the Association is composed of employers in the con-
struction, painting industry, and exists in part for the purpose of
representing its employer members in negotiating and adminis-
trating collective bargaining agreements.
It is alleged in the Complaint the Association, at all times
material herein, has been authorized by the Company to bargain
collectively on its behalf with the Union concerning wages,
hours and other terms and conditions of employment of the unit
employees.
The Company contends no such consent was ever given by
the Company to the Association. The Company argues consent
is needed from three parties before it can be bound to agree-
ments negotiated by the Association with the Union. The
Company asserts the Union consented to the arrangement, but
that neither the Company nor the Association ever gave such
consent.
212
The evidence, I am persuaded, compels the conclusion the
Company authorized the Association to bargain on its behalf
with the Union. First, as Company Vice President of Opera-
tions Beam testified, the Company was signatory for at least
twelve (12) years to collective bargaining agreements negoti-
ated for it by the Association. Beam explained the Company
was signatory to collective bargaining agreements with the
Union negotiated by the Association from at least 1986 until
May 1998. Company Vice President of Operations Beam was
intimately familiar with the Association and the tasks it per-
formed and the services it rendered inasmuch as he was an
official of the Association, at least from 1991 forward.
Mr. Beam knew the Association negotiated collective bar-
gaining agreements in that he served on the negotiating com-
mittee for the Association, as well as from time to time acted as
its chief spokesperson or negotiator. Vice President of Opera-
tions Beam not only helped negotiate and approve collective
bargaining agreements for the Association, prior to 1998, but he
then executed such collective bargaining agreements on behalf
of the Company herein.
Union International Representative Clarence Mitchell testi-
fied Company Vice President of Operations Beam participated
in Association negotiations with the Union in 1989, 1992,
1995, and 1998. Association Secretary-Treasurer Bowen testi-
fied among the mainstays of the Association in the ‘90’s was
the Company herein.
213
By past practice it is clear the Company authorized the Asso-
ciation to negotiate on its behalf with the Union for the unit
employees herein.
The fact the Company may have been a month late in execut-
ing the 1995 to 1998 collective bargaining agreement negoti-
ated by the Association does not establish in any manner the
Company had not given its consent to the Association or that it
was not bound by the 1995 Association negotiated collective
bargaining agreement. Company Vice President of Operations
Beam was told by the Union, reference the 1995 to 1998 collec-
tive bargaining agreement, that the Company was bound to the
agreement and he could not negotiate any different terms for
his Company. Beam thereafter executed the 1995 to 1998 col-
lective bargaining agreement that had been negotiated by the
Association.
The record establishes the following sequence of events
which took place with respect to negotiations for the 1998 to
2001 collective bargaining agreement. In a letter dated March
6, 1998 General President’s representative George Galis noti-
fied Association President Beam as follows: I am writing to
comply with Article 20 of the Collective Bargaining Agreement
between Local Number 970 and the Painting and Drywall em-
ployers. This letter is official notification of Painters Local
Union Number 970’s desire to renegotiate the collective bar-
gaining agreement. Please contact me at, certain numbers, in
order to arrange a date, time and place to begin negotiations.
214
In his letter Union Representative Galis advised the Com-
pany he had already notified the Federal Mediation and Con-
ciliation Services and indicated he would like for the Associa-
tion to notify him as to the members in whose behalf the Asso-
ciation would be negotiating.
Company Vice President of Operations and President of the
Association Beam responded to the Union Representative Galis
notification in a letter dated March 12, 1998, which letter was
received by Galis on March 13, 1998. In his correspondence
Beam stated, “Per Article 20 of the Collective Bargaining
Agreement between the Charleston Chapter of the Painting and
Decorating Contractors of America Local 970 I hereby notify
Local 970 of PDCA’s desire to open negotiations for the next
contract period.”
Association President Beam listed the negotiating committee
members and listed himself as one of the four negotiating
committee members. And Mr. Beam requested the Union con-
tact him with respect to agreeable bargaining dates.
Union Representative Galis testified the Association and Un-
ion met for negotiations in early April, specifically April 7,
1998. Galis testified he and International Representative
Mitchell represented the Union and Association President
Beam and Secretary-Treasurer Bowen represented the Associa-
tion. According to Union Representative Galis, Association
President Beam acted as chief spokesperson for the Association
at the April 7, 1998 negotiating session.
W. R. MOLLOHAN, INC. 1347
215
Galis credibly testified he asked the Association’s negotia-
tors on whose behalf they were negotiating. According Galis,
Association President Beam and Secretary-Treasurer Bowen
jointly responded they represented certain specific employers,
namely W. Q. Waters Company, Inc., W. R. Mollohan, Inc., L.
A. Sams, Inc., Specialty Group/Union Group, Inc., Wiseman
Construction Inc., Commercial Sandblasting and Painting
Company, Inc. in negotiations.
On April the 28th, 1998, Union Representative Galis fol-
lowed up with a letter to Association Secretary-Treasurer Bo-
wen on this very subject of who the Association represented.
Galis’ letter to the Association’s Secretary-Treasurer Bowen in
pertinent part identified seven specific employers, one of which
was the company herein.
Galis credibly testified the Union presented the Association
with a complete proposed collective bargaining agreement at
the April 7, 1998 bargaining session. According to Galis the
parties spent approximately two hours explaining and review-
ing the Union’s contract proposals. Association President and
Company Vice President of Operations Beam and Association
Secretary-Treasurer Bowen were specifically involved in those
discussions.
Based on the above I find the Company herein specifically
authorized the Association to negotiate on its behalf in that it
had been its past practice to do so. And in this particular and
specific negotiating session for the 1998 to 2001 contract
216
Association President and Company Vice President of Opera-
tions Beam specifically indicated the Association was negotiat-
ing on behalf of, among other employers, the Company herein.
On April 17, 1998 Company Vice President of Operations
Beam wrote the Association the following letter: “Dear Sirs,
effective this date please be advised that Joe Beam is resigning
from the PDCA-Negotiating Committee.” On that same date,
April 17, 1998, Company Vice President of Operations Beam
wrote the Joint Apprentice Training Committee the following
letter: “Dear Sirs, Effective this date be advised that Joe Beam
is resigning from the JATC Committee.”
On May 8, 1998 Company Vice President of Operations
Beam wrote the Association to the attention of Association
Secretary-Treasurer Bowen the following letter: “This letter is
intended to clarify my letter of April 17, 1998. By it, W. R.
Mollohan, Inc. did and now confirms it withdraws any authori-
zation of the Painting and Decorating Contractors of America
(PDCA) to bind it in collective bargaining. W. R. Mollohan,
Inc. wishes to pay better wages and provide better benefits for
its employees than the PDCA plans to offer and wishes to nego-
tiate more efficient work rules applicable to its operations.
Please refer all matters concerning bargaining related to W. R.
Mollohan, Inc. directly to me.”
Union Representative Galis testified he learned of the Com-
pany’s attempts to withdraw from bargaining with the multi-
217
employer group when he saw a copy of Beam’s May 8, 1998
letter to Bowen just quoted above.
Union Representative Galis testified the Association and Un-
ion met for a second negotiating session for the 1998 to 2001
collective bargaining agreement on April 27, 1998. According
to Galis the Association made a counter proposal at that meet-
ing, and after approximately two hours of negotiations the par-
ties arrived at a tentative collective bargaining agreement.
Galis explained the only thing tentative about the agreement
was that the Union membership had to ratify the agreement,
which the Union thereafter did.
Galis forwarded a copy of the agreed upon collective bar-
gaining agreement to the Association for Association Secretary-
Treasurer Bowen to proofread, and thereafter execute. Bowen
executed to 1998 to 2001 collective bargaining agreement on
behalf of the Association on May 21, 1998. In a letter of that
same date Bowen wrote Union Representative Galis the follow-
ing letter, with attachments: “Please find enclosed two fully
executed copies of agreement between IPTAT Local Union 970
and the Charleston Chapter of the PDCA.”
On May 18, 1998 Union Representative Galis wrote to all
members of the Charleston Chapter of the Association the fol-
lowing letter: “Enclosed please find two copies of the newly
negotiated and ratified agreement for Local Union 970. Please
218
fill in all the information requested on Page 30 of the agreement
and sign where indicated for PDCA employers. Return both
copies to me and I will then send you a fully executed copy for
your files. As a PDCA member you are already bound to this
agreement. However, I am asking for your cooperation in this
matter in order to collect all pertinent information required on
Page 30 of the agreement. “
On May 22, 1998 Company Vice President of Operations
Beam wrote Union Representative Galis as follows: “W. R.
Mollohan recently sent you a letter stating that we are no longer
represented by the PDCA and ask that you contact us in regard
to beginning negotiations for a future contract for our Com-
pany. Due to time constraints please contact me at your earliest
convenience.”
Union Representative Galis testified he and International Un-
ion Representative Mitchell met with Company Vice President
of Operations Beam after Beams’ May 22, 1998 letter for the
purpose of getting Beam to sign the Association negotiated
collective bargaining agreement. According to Galis, Beam
complained that the money in the collective bargaining agree-
ment was too high. Galis told Beam the Company was already
bound to the contract. Galis testified no negotiations took
place, and Beam did not negotiate with the Union regarding
ceasing to pay into the contractually called for funds, nor did
they negotiate regarding any escrow accounts established by
the Company after the
219
expiration of the prior collective bargaining agreement that was
effective from 1995 until June 1, 1998.
Is the Company herein bound to the 1998 to 2001 collective
bargaining agreement negotiated by the Association?
I am persuaded it is. Historically the Company agreed to ne-
gotiations by the Association on its behalf and it had executed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1348
such agreements. When notified in March 1998 the Union
wished to re-negotiate the collective bargaining agreement the
Association, by it’s President Beam, responded in writing to the
Union on March 12, 1998 that it also wanted to re-negotiate the
collective bargaining agreement, and listed it’s negotiating
team, which included Beam himself as a negotiator.
Company Vice President of Operations and Association
President Beam, along with at least Association Secretary-
Treasurer Bowen negotiated with the Union for a new contract
on April 7, 1998. The negotiators specifically reviewed the
Union’s complete collective bargaining agreement proposal.
At no time did the Association or Beam himself limit the em-
ployers the Association was negotiating for. When asked spe-
cifically who the Association was negotiating for Beam and
Bowers listed the employers, specifically including the Com-
pany herein. Beam took no action that in any way expressed
any indication on the Association or the Company herein’s
behalf, that the Company wanted to negotiate separately or
would not be bound by any negotiated agreement of the Asso-
ciation.
220
In fact, a collective bargaining agreement was arrived at be-
tween the Association of the Union on April 27, subject to Un-
ion ratification. Which was at a time before Union Representa-
tive Galis had even seen Company Vice President of Opera-
tions Beam’s May 8, 1998 letter to the Association giving any
indication he, on behalf of the Company, wished to negotiate in
any other manner.
It is clear the Company was and is bound by the 1998 to
2001 collective bargaining agreement as an 8(f) agreement, and
any belated action taken by it was ineffective to negate its obli-
gation to execute as requested and abide by that agreement.
I specifically reject the Company’s contention that what had
historically taken place was just something that one might term
as group bargaining. And at the conclusion of negotiations the
agreements were tentative, both for the Company and the Un-
ion. Such contention is simply not supported by any credited
testimony or documentary evidence. The only tentative condi-
tion of the collective bargaining agreement negotiated by the
Union and the Association was the agreement had to be submit-
ted to the Union, not the employers, for ratification.
May the Company, as it contends, be excused from execut-
ing and abiding by the 1998 to 2001 collective bargaining
agreement because it contains, what the Company contends are
unlawful provisions? I find it may not escape on such grounds,
but must sign and abide by the agreement.
221
First, the collective bargaining agreement contains a general
savings clause, which is set forth at Article 33, Page 29. Which
reads in pertinent part: “If any article or section of this agree-
ment should be held invalid by operation or law or by any tri-
bunal of competent jurisdiction or compliance with or enforce-
ment of any article or section should be restrained by such tri-
bunal, pending a final determination as to its validity, the re-
mainder of this agreement, or the application of such article or
section to persons or circumstances other than those as to which
it has been held invalid or as to which compliance with or en-
forcement of has been restrained, shall not be affected thereby.”
And then there are certain repetitions of that same savings
clause.
Furthermore, I specifically reject the Company’s contention
that Article 16 at Pages 17 and 18 of the 1998 to 2001 collec-
tive bargaining agreement referred to generally as an anti-
doublebreasting clause violates the Act. Specifically Section
8(e) of the Act. I do not find any violation of the Act therein.
In so concluding I’m not unmindful that some U. S. Circuit
Courts of Appeals find fault with some anti-doublebreasting
language in certain collective bargaining agreements.
I, likewise, reject the Company’s contention that the succes-
sorship clause in the 1998 to 2001 collective bargaining agree-
ment, specifically Article 32, as it pertains to leasing, runs afoul
of the Act. A reading of the successor clause appears
222
to be one that if the Company herein is taken over by another
entity in whole or in part, that new entity is bound by the
agreement. The language speaks in terms of any lease or trans-
fer or assignment, et cetera, “to evade this agreement”.
Accordingly I am persuaded the Company asks that I make a
finding of unlawfulness on this provision that is greater than
what is set forth in the provisions of the successorship clause.
In other words, the matters that are forbidden by the successor-
ship clause would pertain only to an attempt by the Company to
evade the agreement. In its full context I do not find that provi-
sion to run afoul of the Act.
Accordingly I conclude and find the Company is required to
execute and abide by the Association negotiated collective
bargaining agreement as an 8(f) agreement from June 1998
until 2001.
In so finding I shall order the Company the execute and
abide by the 1998 to 2001 contract, and that it in doing so it
recognize the Union as the collective bargaining representative
for its employees. With the rights that the Union would have as
or pursuant to an 8(f) agreement.
I further direct that the Company cease its unilateral deduc-
tion of pension contributions that are not turned over to and
administered by the specific funds called for in the collective
bargaining agreement.
223
I further direct that the Company abide by the contract and
make the necessary contributions retroactive to June 1, 1998 for
the pension fund, the annuity fund, the apprentice training pro-
gram, and the health and welfare fund, as spelled out in the
collective bargaining agreement.
Further, I direct the Company compute and pay the specific
overtime wages that the employees in the unit are entitled to for
the time they worked in the geographic jurisdiction of Local
1144, as set forth in the Parkersburg-Marietta Contractors As-
sociation, Inc. agreement, by which the Company herein is
bound pursuant to its own collective bargaining agreement.
When the Court Reporter serves on me a copy of the tran-
script I will certify those pages of the transcript that constitute
W. R. MOLLOHAN, INC. 1349
my decision. I will perhaps, as has been the case in the past,
make corrections thereon. I will then serve on the parties my
224
certification of the Bench Decision. It is my understanding the
appeals period runs from that time. However, I invite your
attention to the Board’s Rules and Regulations, and if you com-
comply with them you will perhaps be in good stead rather than
relying on my representation of what those rules call for.
And let me state again that it has been a pleasure being in
Charleston, West Virginia.
And with that, this trial is closed.
(Whereupon, the hearing in the above entitled matter was
closed at 10:40 a.m..)